TMI Blog2023 (6) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-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. - EXCISE APPEAL No. 40008 OF 2019, 40385 OF 2020, 40585 OF 2020 - FINAL ORDER No. 40441-40443/2023 - Dated:- 16-6-2023 - MS. SULEKHA BEEVI, MEMBER (JU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that RMC is not same as Concrete Mix (CM) and that the Notification No.4/1997 dated 01.03.1997 exempts only Concrete Mix and not Ready Made Mixed Concrete . 6. The Ld. counsel did not put forward any argument on the merits of the case and has confined the arguments on the ground of limitation. 7. It is submitted that the issue was contentious and litigated before various forums. There was much doubt as to 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. The issue being interpretational in nature, the demand raised invoking the extended period cannot sustain. To support the argument that the issue was contentious before various forums, Ld. Counsel has placed a list of dates and events with regard to the litigation on the issue tabulated as under : LIST OF DATES AND EVENTS Sl. No. Date Events 1 23.05.1997 The Central Board of Excise and Customs by paragraph 4 in its Circular No. 315/31/97-CX dated 23.05.1997 holds that Ready Mix Concrete and concrete mix ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Appellant by following the judgement of larger bench of the Hon ble Tribunal in the case of Chief Engineer, Ranjit Sagar Dam vs. Commissioner of Central Excise, reported as 2006 (198) ELT 503 (Tri) (LB) 7 16.04.2007 A Division Bench of the Hon ble Punjab and Haryana High Court dismisses a Department appeal against the judgement of the larger bench of this Hon ble Tribunal in the case of Chief Engineer, Ranjit Sagar Dam vs. Commissioner of Central Excise, reported as 2006 (198) ELT 503 (Tri) (LB). The judgement of the Hon ble Punjab and Haryana High Court is reported as (2007) 217 ELT 345 (P H). 8 06.10.2015 The Hon ble Supreme Court of India, delivered a common judgement disposing the appeal filed by the assessee against the judgement of this Hon ble Tribunal dated 24.10.2005 and an appeal filed by the Revenue against the judgement of the larger bench of this Hon ble Tribunal, in the case of Chief Engineer, Ranjit Sagar Dam vs. Commissioner of Central Excise, reported as 2006 (198) ELT 503 (Tri) (LB). The Judgement of the Hon ble Supreme Court of India, is reported as Lar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation is taken as one year, the entire period of dispute would fall within the extended period. Reference of the Appeal before this Hon ble Tribunal SCN No. Date Period involved Normal Period Extended Period Order-in-original No. and date Order-in-Appeal No. and date 2 3 4 5 6 7 8 E-40008 of 2019 77/2017 dated 19.06.2017 Jan. 2015 to Feb. 2016 Jan. 2015 to Feb. 2016 24 of 2017 dated 19.12.2017 158 of 2018 dated 25.09.2018 E-40385 of 2020 07 of 2018 dated 26.10.2018 Apr. 2014 to Sept. 2015 Apr. 2014 to Sept. 2015 04 of 2019 dated 14.03.2019 06 of 2020 dated 18.02.2020 E-40585 of 2020 06 of 2018 dated 06.09.2018 Aug. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. Ld. Counsel has argued on the grounds of limitation. The details of the SCN, disputed periods involved in each appeals are furnished in the table above. 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. We also see that 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. The judgment relied by Ld. A.R is not applicable to the facts of the present case for the reason that in the said case it was observed by the Delhi Bench that there is positive act of suppression on the part of the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n goes to show the Revenue relied on the circular dated 23-5-1997 and dated 19-12-1997. The circular dated 6-1-1998 is the one on which appellant places 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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