TMI Blog2019 (1) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that the concrete was produced at their batching plant at the Kengeri site and used for construction of the said project. Further we find that the show-cause notice which has proposed to classify the impugned goods as RMC is without any evidence and basis. Further, in the show-cause notice there is no allegation that process adopted by the appellant to manufacture the impugned goods is similar to the process required for manufacturing RMC and the Department has never disputed or challenged or considered the manufacturing process adopted by the appellant. Time limitation - Held that:- The investigation took place in March 2014 and all the records were taken by the Department during the investigation and statements were also recorded but the show-cause notice was issued in June 2016 which is beyond the normal period of limitation of one year. Though the Department has invoked the extended period alleging suppression whereas according to us there was no suppression on the part of the appellant to evade payment of duty and the appellant had a bona fide belief that the impugned goods are exempted from payment of duty - invoking the extended period of limitation to demand duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice dated 17.06.2016 demanded the excise duty of ₹ 14,02,314/- (Rupees Fourteen Lakhs Two Thousand Three Hundred and Fourteen only) on the basis that the product manufactured by the appellant is RMC manufactured during the period from September 2012 to March 2014 and also proposed interest and penalties and after following the due process the Assistant Commissioner vide its order dated 11.04.2017 accepted the stand of the appellant and held that the item manufactured by the appellant is classifiable as concrete mix and not RMC. The Assistant Commissioner held that the concrete mix is manufactured at construction site only and has not been removed from site for use elsewhere. Therefore, the appellant is eligible for exemption under Notification 12/2012 CE dated 17.03.2012. Consequently the Assistant Commissioner dropped the show-cause notice. Aggrieved by the order of the Assistant Commissioner, Department filed appeal before the Commissioner (Appeals) and the assessee also filed cross-objections before the Commissioner (Appeals) and the Commissioner (Appeals) vide its order dated 15.03.2018 set aside the Order-in-Original and allowed the appeal of the Department. Aggrieved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Metal Press India Vs. CCE 2005 (192) E.L.T. 564 e. Bharat Aluminium Co. Ltd. Vs. CCE 2006 (195) E.L.T. 275 f. CCE Vs. Toyo Engineering India Limited 2006 (201) E.L.T. 513 (SC) 3.1. He further submitted that the show-cause notice does not even specify as to how the goods manufactured by the appellant are classifiable as RMC and the Department has not brought out any evidence on record to prove that the plant set up by the appellant is manufacturing RMC. On merits the learned counsel submitted that the findings of the Commissioner that the appellant is engaged in manufacture of RMC is factually incorrect. He further submitted that the difference between the concrete mix and RMC can be made only by taking into consideration the process undertaken to manufacture concrete mix whereas the Commissioner (Appeals) has not given any finding on the process undertaken by the appellant to manufacture the impugned goods. The learned counsel referred the Board s Circular No. 237/71/96-CX dated 12.08.2016 wherein the Board has clarified that the RMC plant consists of stone crushers, conveyors, vibrator screen and a sand mill and further a central batching plant is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied as the Department has not established any suppression of fact with intent to evade duty on the part of the appellant. He further submitted that the Department undertook the investigation in the year March 2014 and all the records and documents were provided to the Department at the time of investigation. In spite of that, the Department issued the show-cause notice in June 2016 which is after the expiry of more than two years. In support of his submission, he relied upon the following decisions: i. Gammon India Ltd. Vs. CCE, Goa 2002 (146) E.L.T. 173 (Tri.-Mumbai) affirmed by the Supreme Court in 2002 (146) E.L.T. A313 (SC) ii. Monika Electronics 2006 (204) E.L.T. 468 affirmed by Hon ble Allahabad High Court in 2013 (293) E.L.T. A26 (All.). iii. V.N.K. Menon Co. Vs. CESTAT, Chennai 2015 (323) E.L.T. 524 (Mad.) 3.3. He further submitted that the issue involved in the present case is one of interpretation of the Notification which is purely legal in nature and during the period of dispute, there were several decisions of the Hon ble CESTAT as well as High Court which held that concrete mix as well as RMC is exempted from payment of duty and there were e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal analysis and all the components are mixed to form RMC. Further we find that in the show-cause notice there is no allegation that process adopted by the appellant to manufacture the impugned goods is similar to the process required for manufacturing RMC and the Department has never disputed or challenged or considered the manufacturing process adopted by the appellant. Further we find that the Hon ble Apex Curt in the case of Larsen Toubro cited supra has held that it is only the process of preparing the concrete mix which would determine as to whether the product could be termed as concrete mix or it would be treated as RMC. Whereas in the present case the show-cause notice never considered the process of preparing concrete mix to allege that the impugned goods is RMC and the Commissioner (Appeals) has completely ignored the allegation in the show-cause notice and has proceeded on a complete different tangent. Further we find that vide Notification No. 12/2016 CE dated 01.03.2016 Sl. No. 144 of Notification No. 12/2012 CE dated 17.03.2012 has been substituted to extend the benefit of exemption to Readymix concrete as well and it is well settled that when any substitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Notification No. 5/98 dated 02.06.1998. It is seen from the records that the period involved in this appeal is before the period for which the Tribunal has taken a view in favour of the appellant and in respect of same activity undertaken for some other site. Further as far as limitation is concerned, we find that the investigation took place in March 2014 and all the records were taken by the Department during the investigation and statements were also recorded but the show-cause notice was issued in June 2016 which is beyond the normal period of limitation of one year. Though the Department has invoked the extended period alleging suppression whereas according to us there was no suppression on the part of the appellant to evade payment of duty and the appellant had a bona fide belief that the impugned goods are exempted from payment of duty and there were two decisions in their favour by CESTAT as cited supra and the issue was with regard to interpretation of the notification which is purely legal in nature and during the period of dispute there were decisions in favour of the appellant. Therefore, invoking the extended period of limitation to demand duty is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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