TMI Blog2018 (10) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... of manufacture, whether conventional (manual) or automated. It is seen that in the entire findings of the Hon’ble Apex Court from para 18 onwards there is no mention of any IS Specification anywhere. In fact Hon’ble Apex Court has not relied at all on the IS Specifications. In these circumstances any changes in the IS Specifications cannot be used to distinguish the decision of Hon’ble Apex Court. Time Limitation - Held that:- The concrete mix prepared at site would be entitled to exemption under Notification 4/97. In these circumstances, the benefit of limitation has to be extended to the appellant. Penalty - Held that:- Since the issue was of interpretation no penalty can be imposed on Sh. Mukund K. Bangde. The demand against M/s Larson & Toubro for the period beyond the normal period of limitation is set aside - penalty also set aside - appeal allowed in part. - E/10491-10492/2018-DB - A/12121-12122/2018 - Dated:- 10-10-2018 - Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) For the Appellant : Mr. Vikram Nankani (Advocate) For the Respondent : Mr. Nitina Nagori (AR) ORDER PER: RAJU This appeal has been filed by M/s Larsen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under a new tariff entry, being 3824.20, separate from that of Concrete Mix, classifiable under CTH 6807, the Hon ble Supreme Court held that entry 51 of Notification No.4/97-CE intended to cover only Concrete Mix manufactured by conventional methods and will not be available to RMC classifiable under 3824.20. Ld. Counsel submits that the Central Excise Tariff underwent a complete revamp in 2005, with the introduction of 8 digit tariff classification. With the change in tariff, a new 6 digits tariff entry, being Sub-heading 3824 50, was created under the residual Chapter Heading of 38 24. This sub-heading is preceded by a single dash and reads as under: Non-refractory mortars and concretes The said 6 digits sub-heading is followed by a further sub-heading preceded by a sub-heading 3824 50 10 which reads as under: Concrete ready to use also known as Ready Mix Concrete. This 8 digits sub-heading is actually a definition of concrete. It equates Concrete with Ready Mix Concrete (RMC). It defines any concrete which is ready to use as Ready Mix Concrete. 2.2 Ld. Counsel argued that by a Parliamentary amendment, the distinction between Concrete and RMC is removed so lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said IS 456:2000 was further amended in 2013 to provide as follows: 10.2 [ ] For large and medium project sites, the concrete shall be sourced from ready-mixed concrete plants or from captive on-site or off-site automatic batching and mixing plants. The concrete produced and supplied by ready-mixed concrete plants shall be in accordance with IS 4926. In case of concrete from captive on-site or off-site automatic batching and mixing plants, similar quality control shall be followed [ ] 2.4 The Appellant submits that even if concrete is manufactured by use of on-site automatic batching plants it will be still be considered to be Concrete Mix manufactured in accordance with IS 456:2000. Accordingly, the judgment of the Apex Court could not be relied upon, as it was rendered in the context of older standards i.e. IS 456:1978. The distinction drawn by the Apex Court based on the method or manner of manufacture of concrete is no longer relevant as the standard itself states that even concrete produced in an automated plant can also qualify as Plain or Reinforce Concrete as contemplated under IS 456:2000. The Appellant, therefore, submits that the only test which wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Larger Bench of the Hon ble Tribunal in the case of Chief Engr. Ranjit Sagar Dam vs. CCE, Jalandhar [2006 (198) E.L.T. 503 (Tri. - LB)] which was affirmed by the Hon ble High Court of Punjab Haryana in CCE, Jalandhar vs. Chief Engr. RanjitSagar Dam [2007 (217) E.L.T. 345 (P H)]. The Appellant submits that in same factual background, the Hon ble Supreme Court in the case of Continental Foundation Jt. Venture vs. CCE, Chandigarh-I [2007 (216) E.L.T. 177 (S.C.) had already taken a view in 2007 that there existed enough doubts in the minds of the assesses on account of divergent views expressed by the Tribunal coupled with the decision of the Punjab and High Court in the case of RanjitSagar Dam (supra) and consequently, extended period of limitation cannot be invoked as the claim of the assesses for benefit from payment of Excise Duty by treating the goods as concrete mix does not amount to suppression of facts. 2.6 The Ld. Counsel also submits that penalty levied on the Project Manager, Sir Keshan Bangde, under Appeal No. E/10492/2018 should also be set aside. 3. Ld. AR relies on the impugned order. She particularly relies on the decision of Hon ble Apex Court appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ariff read as follows: 3824 PREPARED BINDERS FOR FOUNDRY MOULDS OR CORES; CHEMICAL PRODUCTS AND PREPARATIONS OF THE CHEMICAL OR ALLIED INDUSTRIES (INCLUDING THOSE CONSISTING OF MIXTURES OF NATURAL PRODUCTS), NOT ELSEWHERE SPECIFIED OR INCLUDED; RESIDUAL PRODUCTS OF THE CHEMCIAL OR ALLIED INDUSTRIES, NOT ELSEWHERE SPECIFIED OR INCLUDED. 3824.10 -Phosphogypsum 3824.20 -Ready Mix Concrete 3824.90 -Other During the period of dispute, the relevant part of heading reads as follows: 3824 PREPARED BINDERS FOR FOUNDRY MOULDS OR CORES; CHEMICAL PRODUCTS AND PREPARATIONS OF THE CHEMICAL OR ALLIED INDUSTRIES (INCLUDING THOSE CONSISTING OF MIXTURES OF NATURAL PRODUCTS), NOT ELSEWHERE SPECIFIED OR INCLUDED 3824 10 00 3824 30 00 3824 40 3824 40 10 3824 40 90 3824 50 3824 50 10 3824 50 90 .. . . Non refractory mortars and concretes Concretes ready to use known as ready Mix Concrete(RMC) Other Kg. Kg. 5% 10% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity regarding the distinction between RMC and concrete mix in following Notes. 20. After referring to some text as well, the adjudicating authority brought out the differences between Ready Mix Concrete and CM which is conventionally produced. The position which was summed up showing that the two products are different reads as under : From the literature quoted above it is clear that Ready Mix Concrete is an expression now well understood in the market and used to refer to a commodity bought and sold with clearly distinguishable features and characteristics as regards the plant and machinery required to be set-up for its manufacture and the manufacturing processes involved, as well as its own properties and the manner of delivery. RMC refers to a concrete specially made with precision and of a high standard and as per the particular needs of a customer and delivered to the customer at his site. Apparently due to the large demand resulting from rapid urbanization and pressure of completing projects on time, consumption of RMC has steadily grown replacing the conventional/manual concreting works. Today leading cement companies have entered the field by setting-up RMC plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the view to be taken. The Tribunal apparently has not considered these aspects correctly. Contrary to the factual position, the CEGAT has held that no plea was taken about there being no intention to evade payment of duty as the same was to be reimbursed by the buyer. In fact such a plea was clearly taken. The factual scenario clearly goes to show that there was scope for entertaining doubt, and taking a particular stand which rules out application of Section 11A of the Act. 12. As far as fraud and collusion are concerned, it is evident that the intent to evade duty is built into these very words. So far as misstatement or suppression of facts are concerned, they are clearly qualified by the word wilful , preceding the words misstatement or suppression of facts which means with intent to evade duty. The next set of words contravention of any of the provisions of this Act or Rules are again qualified by the immediately following words with intent to evade payment of duty. Therefore, there cannot be suppression or misstatement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11A. Misstatement of fact must b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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