TMI Blog2007 (8) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... year 1997-98. Post 1997-98 the tariff entry provides that the rate is nil. The basic facts are noted in the appeal filed by Continental Foundation Joint Venture-the appellant in Civil Appeal No.3139 of 2002. 2. The appellant M/s Nathpa Jhakri Power Corporation (in short 'NJPC') is a Joint venture between the Government of India and Govt. of Himachal Pradesh, set up for the purpose of construction of a power-project between the towns of Nathpa-Jhakri in Himachal Pradesh known an Nathpa Jhakri Power Corporation funded by the World Bank. The civil work relating to the project was allotted to three construction companies viz. M/s Continental Foundation Joint Venture (in short 'CFJV'), M/s Nathpa Jhakri Joint Venture (in short 'NJJV') an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conveyor. The admixture for water reduction or air entraining is incorporated in the concrete as per the approved mix design given by the NJPC. The whole process is fully automatic and is electronically controlled. The concrete of approved mix design and the specified quantity is manufactured in the batching plant strictly in accordance with IS: 456-1978 as stipulated in the contract with M/s NJPC. The concrete so produced is transported by transit mixers upto the location of placement and is placed at the specified location by concrete pumps or placers before the setting time of concrete, which varies depending upon the type of cement used. Noticee companies are manufacturing RMC but with some motive, they are naming it as mixed concrete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is in fact Ready Mix Concrete and M/s NJPC alongwith three construction companies have concealed its nomenclature with an obvious intention to escape the duty on the said Ready Mix Concrete. M/s NJPC have apparently abetted the contravention of non payment of Duty, they are therefore, liable for penal action the said abetment." 5. In appeal, apart from the other challenges the plea relating to non-applicability of the extended period of limitation was also urged. The Tribunal did not accept the contention with the following observations: "16. Another argument is about the time bar of demands. It is contended that, in view of the Board Circular dated 6.1.1998, since they were making the concrete at site and as per the standards pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised before the adjudicating authority. The Power Corporation is also an appellant in this case and there is no plea of any such commitment on their behalf in their appeal. There is no evidence that the stated clause in the contract would bind the Power Corporation to reimburse the appellants even for the duty liability fastened on to the appellants on the ground of suppression and misrepresentation etc. and not on account of any change in legislation, regulation or by laws. The plea of bona fide belief is, therefore, rejected. The appellants are also claiming the benefit of modvat credit on the input material but this plea is also not raised before the original authority. However, in the interest of justice, they could be given an opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession 'suppression" has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or "collusion" and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11-A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a willful misstatement. The latt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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