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2023 (6) TMI 695 - AT - Central ExciseExemption from Excise Duty or not - manufacture of Ready Mix Concrete - whether RMC can be considered as ‘Concrete Mix’ and the exemption as per Notification No.4/1997-CE dated 01.03.1997 would be available? - extended period of limitation - HELD THAT:- The issue on merits stands covered against the assessee by the decision 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] - It has been categorically held by the Hon’ble Apex Court that Notification No.4/1997-CE dated 01.03.1997 exempts only ‘Concrete Mix’ (CM) and that the said exemption is not available to “Readymade Mix Concrete” (RMC) manufactured at site and that RMC and concrete mix are not one and the same. The issue on merits is therefore held against the assessee and in favour of the Revenue. Time Limitation - HELD THAT:- From the dates and events of the litigation, it is established that the issue as to whether RMC is also eligible for the Exemption Notification No.4/97-CE, other notifications and whether RMC and concrete mix are one and the same was under confusion and was under litigation before various forums. Also the department has not been able to establish with cogent evidence that there is any positive act of suppression on the part of the appellant with intent to evade payment of duty. The details for demand of duty has been derived from the accounts and documents furnished by the appellant. In the case of M/S CONTINENTAL FOUNDATION JOINT VENTURE SHOLDING, NATHPA HP VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH-I [2007 (8) TMI 11 - SUPREME COURT] the Hon’ble Apex Court allowed the plea of the assessee that the SCN is time barred as there were no grounds to invoke extended period and also because there were doubts as to whether RMC is a dutiable product. Thus, SCNs issued invoking the extended period in these appeals are time-barred and therefore cannot sustain. The impugned orders are set aside on the ground of limitation. Appellants succeed on the ground of limitation.
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