TMI Blog2016 (9) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... - SUPREME COURT OF INDIA] is squarely on this issue. Therefore, as the period as well as the issue involved is roughly the same. Relying upon the above said decision of the Hon’ble Supreme Court we hold that the extended period of limitation cannot be invoked in this case. - Decided in favour of appellant - E/2895 to 2897/06 - A/89048-89050/16/EB - Dated:- 3-8-2016 - Mr. M.V. Ravindran, Member (Judicial) and Mr. Raju, Member (Technical) Shri S.S. Gupta, C.A. with Shri Vinod Awtani, C.A. for appellant Shri Ajay Kumar, Jt. Commr (AR) for respondent ORDER The appellants were issued notices demanding duty on Ready Mix Concrete (RMC) manufactured by them. The demand was confirmed by the Commissioner however, this Tribunal vide order dated 06.11.2006 allowed the appeals of the appellants following the decision of Larger Bench of this Tribunal in the case of Chief Engg. Ranjit Sagar Dam vs. CCE Jalandhar - 2006 (198) ELT 503. Revenue agitated the matter before the Hon ble Apex Court and the Apex Court vide order dated 19.11.2015, as reported at 2015 (326) ELT 24 (S.C.), has observed as follows:- The Tribunal by way of impugned judgment has allowed the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequently the appeals were taken up for hearing on 12.05.2016. 2. Learned Counsel for the appellants argued that they had not manufactured RMC. The learned Counsel relied on the CBEC Circular No. 368/1/98-CX dated 06.01.1998. The said Circular had clarified as follows:- 2.. The Board has examined the issue of RMC afresh and finds that a clear distinction needs to be made between the two types- (a) concrete mix at site and (b) Ready Mix Concrete. The Ready Mix Concrete plant consists of stone crushers, conveyors, vibrator screen to segregate different sizes of stone aggregates, and a sand mill to produce sand from stones, A central batching plant is also installed in which all aggregates are weighted, batched by electrical controls and limit switches. Cement from silo is carried to the batching plant by a screw conveyer operated with automatic weighing gauges. Water is fed through flow meters after subjecting such water to chemical analysis. The mixture of stone aggregates, sand, cement and water is mixed in a mixer. The shelf life of the mixture so obtained is increased by addition of chemicals. This mix is loaded on a transit mixer mounted on truck chassis which is tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d when required and no other chemicals are added. He further pointed out that even during cross-examination of Shri S.Y. Karkhanis no evidence regarding of any addition of any retarders (to increase shelf-life) was brought out. He further argued that as per CBEC Circular dated 06.01.1998, RMC cannot be manufactured at site and therefore the product manufactured by them at the site of Mahindra and Mahindra cannot be treated as RMC. He argued that prior to installation of bigger batching plant, concrete mix was being manufactured in small concrete mixers till 6th December 1996. He argued that the nature of manufacture of product upto 5th December 1996 and after 6th December 1996 (upto 5th December 1996, using smaller mixer and after 6th December 1996, using bigger batching plant) is one and the same. 2.4 He further argued that the concrete mix manufactured at the site of construction is eligible for exemption under Notification No. 4/97-C.E. dated 01.03.1997. He further argued that the cross examination of Shri S.Y. Karkhanis was obtained under duress and he was forced to mention the terms ready mix before the word concrete in his statement. 2.5 He further argued th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particularly relied at para 9, 19, 20 and 21. He argued that the Hon ble Supreme Court has clearly held that the benefit of Notification No. 4/97-C.E. dated 01.03.1997 is not applicable for ready mix concrete but only to concrete mix. 4. We have gone through the rival submissions. We find the issues that need to be decided are - (a) is the product manufactured by the appellant is RMC (Ready mix concrete) or concrete mix, (b) whether benefit of Notification No. 4/97 dated 01.03.1997 is available to the appellant in respect of the product manufactured by them, (c) whether extended period of limitation can be invoked in the instant case. 4.1 The product manufactured by the appellant is concrete and is manufactured at the site. The product contains plasticizers but does not contain retarders. While the Project Manager Shri S.Y. Karkhanis has admitted in his statement that the product manufactured by them is ready mix concrete but he has backed out during cross-examination. 4.2 Hon ble Supreme Court in the case of Larson Toubro (supra) has clearly held as follows:- 9 . It is clearly discernible from the above that the Legislature has treated RMC and CM as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncrete sites. The product is marketable, transportable and eventually available for sale. 4. The product concrete mix was not specified anywhere in Chapter 28 of the Central Excise Tariff Act, 1995. It was classified under Chapter sub-heading 38.23. However, as both the concrete mix and Ready Mix Concrete were closely related products, confusion arose in respect of classification and levy of duty. 19 . We are also inclined to agree with the stand taken by the Revenue that it is the process of mixing the concrete that differentiates between CM and RMC. In the instant case, as it is found, the assessee installed two batching plants and one stone crusher at site in their cement plant to produce RMC. The batching plants were of fully automatic version. Concrete mix obtained from these batching plants was delivered into a transit mixer mounted on a self propelled chassis for delivery at the site of construction is in a plastic condition requiring no further treatment before being placed in the position in which it is to set and harden. The prepared chassis which was mounted was to ensure that when the concrete mix is taken to the actual place of construction, it keeps rotati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove aberration and impact resistance. 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 plants in which L T ECC is one. RMC is slow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reliance. Undisputedly, CEGAT in Continental Foundation Joint Venture case (supra) was held to be not correct in a subsequent larger Bench judgment. It is, therefore, clear that there was scope for entertaining doubt about 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 mis-statement or suppression of facts are concerned, they are clearly qualified by the word wilful , preceding the words mis-statement 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 inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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