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TMI Blog2023 (6) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... hout taking Central Excise registration and without payment of Central Excise duty, investigation was initiated. In the investigation, it was revealed that appellantcompany was undertaking engineering and construction of buildings and used RMC manufactured at the construction sites. They were not making any sale of these RMCs manufactured at site and the entire quantity was captively consumed for construction purpose. The appellant had obtained service tax registration for paying service tax for various services provided and received under reverse charge mechanism but had not obtained central excise registration for manufacture of excisable goods. It appeared that the appellant has undertaken manufacture of RMC and had not discharged excise duty on the said excisable goods. That RMC and Concrete Mix being different, the duty exemption eligible to CM is not applicable to RMC. 4. Show cause notices were issued proposing to demand duty along with interest and for imposing penalty. The original authority confirmed the demand along with interest and imposed penalty. On appeal, Commissioner (Appeals) upheld the same. Hence the appellants are now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracted, only if manufactured at a place other than the site of construction. After so recording the statement made on behalf of the Revenue, the Writ Petition was disposed off, by the Hon'ble High Court. 3 28.04.2005 The Division Bench of this Hon'ble Tribunal, in the case of Larsen & Toubro Limited Vs. CCE reported as 190 ELT 132 holds that the assessee is not entitled to exemption on the goods known as 'Ready Mix Concrete' under Notification No. 4/1997-CE dated 01.03.1997. 4. 26.07.2005 A Division Bench of this Hon'ble Tribunal disagreed with the earlier judgement in the case of Continental Foundation Joint Venture vs. CCE, Chandigarh, reported as 2002 (150) ELT 216 and refers the question of availability of exemption for Ready Mix Concrete manufactured at site to a larger bench. 5 23.01.2006 The Larger bench of this Hon'ble Tribunal in this case of Chief Engineer, Ranjit Sagar Dam vs. Commissioner of Central Excise., Chandigarh, holds that Ready Mix Concrete manufactured at site will also be eligible for exemption under Notification No. 4/97-CE dated 01.03.1997. The judgement of the larger bench of this Hon'ble Tribunal is reported as 2006 (198) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai). 8.1 It is seen that Division Bench of the Tribunal in the case of Larsen & Toubro Ltd. Vs CCE Hyderabad vide order dated 28.04.2005 as reported in 2005 (190) ELT 132 (Tri.-Bang.) held that exemption as per Notification No.4/1997 is not eligible for RMC. 8.2 The Larger Bench vide order dt. 23.01.2006 held that RMC manufactured at site will be eligible for exemption under Notification No.4/97 as reported in 2006 (198) ELT 503 (Tri-LB). 8.3 Later, the Hon'ble Apex Court vide judgment dt. 06.10.2015 set aside the decision of the Larger Bench of the Tribunal and held that RMC and concrete mix are different products and that only concrete mix is eligible for Exemption under Notification No.4/97. 8.4 The litigatory travel of the issue as to whether RMC & CM are one and the same product and whether RMC is eligible for the exemption available to CM has been given by the counsel. The learned counsel prayed that the issue being an interpretational one, the show cause notices issued invoking extended period cannot sustain. 9. The following table was furnished by the appellant to submit that when the period of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore show cause notice issued invoking the extended period was correct. Ld. A.R submitted that non-payment of duty would not have come to light but for the investigation conducted by the department. Show cause notices issued invoking the extended period are therefore legal and proper. 12. Heard both sides. 13. At the outset, it has to be stated that the issue on merits stands covered against the assessee by the decision in the case of Larson & Toubro ECC Construction Group Vs CCE Hyderabad - 2015-TIOL 236-SC-CX. 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. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong 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 11A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a willful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not correct. 11. Factual position 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, demand for the period falling outside the normal period, is set aside along with setting aside of penalty upon the appellant. However, the demand falling within the limitation period is required to be upheld. We order accordingly and direct the Original Adjudicating Authority to quantify the same." 17. In the case of Nagarjuna Construction Co. Ltd. Vs CGST, CUSTOMS & CE Bhopal - 2019 (3) TMI 773 CESTAT NEW DELHI the demand raised by invoking extended period was set aside. The Tribunal has observed as under : "6. Having considered the rival contentions, we are satisfied that the show cause notice in question, invoking the extended period of limitation has been issued by way of change of opinion, there being no condition precedent available for invocation of extended period of limitation. In this view of the matter, we hold that the show cause notice is not maintainable. Accordingly, we allow the appeal and set aside the impugned order. The appellants are entitled to consequential relief in accordance with law." 18. From the above discussions, we are of the considered opinion that SCNs issued invoking the extended period in these ..... X X X X Extracts X X X X X X X X Extracts X X X X
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