By TIOL News Service

NEW DELHI, MAR 04, 2019: THE appellants are engaged in manufacture of concrete, ready-to-use, known as ‘Ready Mix Concrete' (RMC).

They are in appeal against the o-in-a confirming the CEx duty on RMC for the period 01.03.2012 to 31.03.2012. It is contended that given the facts involved the demand is hit by limitation and hence liable to be set aside.

The facts leading to the SCN are -

01.03.1997 and 01.03.2006 : Notification No. 4/1997-CE and Notification No. 4/2006 respectively, exempted payment of excise duty for ‘Concrete Mix' in terms of Sl. No. 51 or Sl. No. 74, falling under Chapter 38.

07.02.2011: SCN issued upon the Appellant wherein the benefit of SSI exemption was sought to be denied on the grounds that the Appellant was also engaged in manufacture of RMC, which was exempted from payment of duty and whose value was not considered to determine the aggregate value of clearances and hence the appellant is not entitled to SSI exemption, as their turnover of dutiable goods and exempted goods (RMC) was in excess of Rs.4 Crores.

17.03.2012: Mega Exemption Notification No. 12/2012-CE also exempted payment of excise duty for ‘Concrete Mix' vide Sl. No. 144.

19.03.2012: Additional Commissioner, Hyderabad while adjudicating the matter vide Para 13 of the Order-in-Original No. 14/2012-(CE) categorically held:

"The issue involved in the present case is that the assessees have irregularly availed SSI exemption Notification No. 8/2003-CE, dated 01.03.2003 without including the value of clearances of the exempted goods viz. ready mix concrete to arrive at the aggregate value of turnover"

6.10.2015

The Supreme Court in Civil Appeal filed by Larsen and Toubro - 2015-TIOL-236-SC-CX against the Tribunal order - 2005-TIOL-1281-CESTAT-BANG held that Notification No. 4/97-CE exempted Concrete mix or CM and not RMC (Ready mix concrete).

The appellant, therefore, submits that in view of the aforementioned,no case of collusion, suppression of facts or malafide is made against the appellant. Further, the view of the department is evident from show cause notice dated 7.2.2011, that Revenue itself was of the view that the RMC is exempted goods under the said Notification No. 4/97-CE. Moreover, view of the Tribunal - 2006-TIOL-321-CESTAT-DEL-LB that Concrete mix includes Ready Mix Concrete was confirmed by the Punjab and Haryana High Court.

So also, it is only after the ruling of the Supreme Court dated 6.10.2015 that the present show cause notice dated 9.3.2017 was issued; that the SCN has been issued only for the sake of change of opinion on the part of the Revenue and, therefore, the demand relating to the period March, 2012 was beyond the period of limitation; that the impugned order should be set aside and the appeal allowed.

The Bench considered the submissions and in a terse order held -

"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…."

The impugned order was set aside and the appeal was allowed with consequential relief.

(See 2019-TIOL-667-CESTAT-DEL)