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2022 (3) TMI 400 - AT - Central ExciseArea based exemption - Ready Mix Concrete - exemption Notification No.12/2012-CE dated 17.03.2012 - period April, 2014 to September, 2015 - larger period for confirmation of demand in terms of Section 11A(4) of the Central Excise Act, 1944 - concessional rate of duty at the rate of 2% in terms of Notification No.1/2011-CE dated 01.03.2011 - Notification No.12/2016-CE dated 01.03.2016 - Ready Mix Concrete (RMC) manufactured and used at their site - period April, 2016 to June, 2017 - extended period of limitation - suppression of facts - HELD THAT:- There were contrary judgments on the issue however, finally the hon’ble Supreme Court in the case of M/S LARSEN & TOUBRO LTD. & ANOTHER, ECC CONSTRUCTION GROUP VERSUS COMMISSIONER OF CENTRAL EXCISE, HYDERABAD [2015 (10) TMI 612 - SUPREME COURT] held that the exemption under Notification No.4/97-CE which is identically worded to Sr.No.144 of Notification No.12/2012-CE dated 17.03.2012 is inapplicable to Ready Mix Concrete - the Apex Court held that RMC is not the same as Concrete Mix and exemption is granted to Concrete Mix only and not to the Ready Mix Concrete. In view of the above judgment, it is clear that the assessee’s product i.e. Ready Mix Concrete (RMC) is not eligible for exemption under Notification No.12/2012-CE dated 17.03.2012 (Sl.No.144) which is pari materia to the exemption entry provided in Notification No.4/97-CE involved in the case of LARSEN & TOUBRO. Extended period of limitation - Suppression of facts - HELD THAT:- There is absolutely no suppression of fact on the part of the assessee with intent to evade payment of duty therefore, the judgments relied upon by the Revenue are not applicable in the facts of the present case. Accordingly, the entire demand is under extended period i.e. from April, 2014 to September, 2015 and April, 2016 to June, 2017 whereas, the Show Cause Notice was issued on 15.04.2019 therefore, the entire demand is time barred. The adjudicating authority had rightly extended the benefit of exemption notification in respect of Ready Mix Concrete (RMC) used by the assessee in their manufacturing premises for construction work hence, the demand for the period April, 2016 to June, 2017 was rightly dropped by the adjudicating authority on the ground of its merit - other issues such as claim of exemption N/N. 67/95-CE and N/N. 2/2011-CE dated 01.03.2011 (Sl.No.46) not dealt with. Appeal allowed in part.
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