{"id":70784,"date":"2007-05-02T00:00:00","date_gmt":"2007-05-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-larsen-and-tubro-ltd-vs-the-commissioner-of-central-on-2-may-2007"},"modified":"2016-09-30T12:17:57","modified_gmt":"2016-09-30T06:47:57","slug":"ms-larsen-and-tubro-ltd-vs-the-commissioner-of-central-on-2-may-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-larsen-and-tubro-ltd-vs-the-commissioner-of-central-on-2-may-2007","title":{"rendered":"M\/S Larsen And Tubro Ltd vs The Commissioner Of Central … on 2 May, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S Larsen And Tubro Ltd vs The Commissioner Of Central … on 2 May, 2007<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (civil)  2990 of 2006\n\nPETITIONER:\nM\/s Larsen and Tubro Ltd\n\nRESPONDENT:\nThe Commissioner of Central Excise, Pune-II\n\nDATE OF JUDGMENT: 02\/05\/2007\n\nBENCH:\nS.B. SINHA & MARKANDEY KATJU\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
S.B. Sinha, J :\n<\/p>\n
1.\tAn order dated 16.2.2006 passed by the Customs, Excise and
\nService Tax Appellate Tribunal (CESTAT) in Appeal No.E\/3634\/98-Mum.,
\nis in question before us. The appellant is a company incorporated under the
\nCompanies Act. It undertook a contract for construction of bridges for M\/s.
\nKonkan Railway Corporation Ltd. (‘Konkan Railway’, for short), which is a
\npublic sector undertaking. Appellant manufactured Pre Stressed Concrete
\nGirders (PSC Girders). It used to transport them to the site of construction
\nof bridges of the Railways. It did not register itself with the authorities of
\nthe Central Excise.\n<\/p>\n
2.\tAlleging that the appellant, for the period March 1993 and
\nDecember 1994, although was involved in the manufacturing activity, by
\nundertaking manufacture of 75 PSC Girders, but did not pay any excise
\nduty thereupon.\n<\/p>\n
3.\tA notice was issued to the appellant directing it to show cause as to
\nwhy Central Excise duty to the tune of Rs.32,35,575\/- should not be
\ndemanded and recovered from them in terms of the proviso appended to
\nRule 49(1) of the Central Excise Rules, 1944 (Rules) read with Section
\n11A of the Central Excise and Salt Act, 1944 (Act)  and as to why penalty
\nshould not be imposed on them and the plant & machinery and the
\nmanufactured goods should not be confiscated. Cause was shown by the
\nappellant inter alia stating that no excise duty was payable. The said
\nnotice was withdrawn stating:\n<\/p>\n
“The said Show Cause Notice has been issued without
\nobtaining approval of the proper authority or by the
\nproper officer. Accordingly, Show Cause Notice dated
\n27.1.94 hereby withdrawn.\n<\/p>\n
\tThe withdrawal of the Show Cause Notice is without
\nprejudice to any action including issue of fresh Show
\nCause Notice which may be taken against M\/s. Konkan
\nRailway Corporation Ltd., Ratnagiri (North), Lanjekar
\nCompound, Phansi Baug, Udyamnagar, Ratnagiri of
\nCentral Excise Law or any other law of the time being is
\nforce.”\n<\/p>\n
4.\tAfter a long time, namely, on 1.5.1996, another show cause notice
\nwas issued on the same premise for the period March 1993 and December,
\n1994. The extended period of limitation was invoked alleging suppression
\nof fact on the part of the appellant. Appellant herein filed a show cause
\nwherein inter alia the question of applicability of the extended period of
\nlimitation as contained in the proviso appended to Section 11A of the Act
\nwas specifically raised. The Commissioner of Central Excise, Pune, in his
\njudgment opined that basically following four issues were involved:\n<\/p>\n
“(i) Whether a process of ‘manufacture’ is involved?\n<\/p>\n
(ii) Whether the girders can be considered as immovable
\n\tproperty or not?\n<\/p>\n
(iii) Whether the girders can be considered as marketable
\n\tor not and whether exemption under Notification
\n\tNo.59\/90 can be extended?\n<\/p>\n
(iv) Whether there was suppression of facts on the part of
\n\tthe noticees so as to invoke extended period?”\n<\/p>\n
5.\tIt was held that as construction of the bridges consists of many
\nthings, including foundation and super structure, manufacture of PSC
\nGirders would come within the purview thereof; and the same would not be
\nimmoveable property. It was further held that the longer period of
\nlimitation has rightly been invoked as the appellant had suppressed the fact
\nfrom the department that the goods in question were excisable articles. It
\nwas opined:\n<\/p>\n
“12. As regards penalty on KRCL under Rule 209A, since
\nthe manufacturing activity was undertaken by M\/s. L & T
\nand there is no evidence of their mala fides in the matter,
\nfurther they have also alerted the contracting party about
\ndischarge of central taxes etc. as seen from clause 47 of
\ncontract, I refrain from imposing any penalty on them.\n<\/p>\n
13. As regards confiscation of 75 Nos. of PSC girders,
\nthough M\/s. L & T were given a notice in writing
\ninforming them the grounds on which it is proposed to
\nconfiscate the goods and they were also given an
\nopportunity of making a representation within reasonable
\ntime against the said proposed confiscation and a
\nreasonable opportunity of being heard in the matter, they
\nonly stated that these were not liable for confiscation
\nbeing permanently embedded in the earth, thus
\nimmoveable property. As already held since girders at the
\nearth, they came into existence were not embedded to the
\nearth, they cannot be considered as immoveable property
\nand therefore I hold these 75 Nos. of PSC girders liable
\nfor confiscation under Rule 173Q read with Rule 226 of
\nCER, 1944.”\n<\/p>\n
6.\tThe appeal preferred thereagainst by the appellant, as noticed
\nhereinbefore, was dismissed by the Tribunal.\n<\/p>\n
7.\tMr. Venkataraman, learned senior counsel appearing on behalf of
\nthe appellant would raise two contentions in support of this appeal:\n<\/p>\n
\t(i) That earlier notice having been withdrawn wherein no allegation
\nof suppression had been made, the same could not have been made in the
\nsecond notice dated 1.5.1996.\n<\/p>\n
\t(ii) In any event, the question as to whether the activities of the
\nappellant would attract excise duty or not having been decided for the first
\ntime by a larger Bench of the Tribunal in Asian Techs Ltd. vs.
\nCommissioner of Central Excise, Pune-II,<\/a> [2005 (189) ELT 420] it was not
\na case where the extended period of limitation should have been invoked.\n<\/p>\n
8.\tMr. Gopal Subramanium, learned Additional Solicitor General
\nappearing on behalf of the Union of India, on the other hand, would
\nsubmit:\n<\/p>\n
\t(i) For construction of the notice dated 27.1.1994, the allegations
\nmade therein as a whole must be taken into consideration for the purpose
\nof arriving at a conclusion as to whether a case for suppression had been
\nmade out or not.\n<\/p>\n
\t(ii) Withdrawal of the first notice per se would  not disentitle the
\nDepartment from issuing another notice as the same had been issued by an
\nofficer who had no authority in relation thereto.\n<\/p>\n
\t(iii) As the appellant had been seeking exemption from payment of
\nexcise duty, suppression of fact on its part must be inferred as it did not get
\nitself registered for the purpose of payment of  excise duty.\n<\/p>\n
9.\tWhether the activities carried out by the appellant would amount to
\nmanufacture or not was a debatable issue. Our attention has been drawn to
\nseveral decisions of the Tribunal, namely, Asian Techs Ltd. (supra),
\nRajeswari Enterprises (Constructions) Pvt. Ltd. vs. CCE, Madurai, [2005
\n(180) ELT 66 (Tri. – Chennai)],  Tecco vs. CCE, Madurai, [2002 (149)
\nELT 133 (Tri.- Chennai)]; Delhi Tourism and Transportation Development
\nCorporation vs. C.C.E.,<\/a> [1999 (114) ELT 421 (Tri.-Delhi)]; M.
\nRamachandra Rao vs. CCE, Guntur, [2005 (186) ELT 353 (Tr.-
\nBangalore)]; Raghunath Ramachandra Shanbag vs. CCE, Mumbai-VII,
\n[2004 (178) ELT 488 (Tr.-Mumbai)]; and Gammon India Ltd. vs. CCE,
\nGoa, [2002 (146) ELT 173], which held the field at the relevant point of
\ntime.\n<\/p>\n
10.\tQuestions involving similar cases came for consideration before the
\nTribunal at different points of time. They were answered differently by
\ndifferent Benches.\n<\/p>\n
11.\tThe Tribunal in its order dated 25.4.2003, in the case of M\/s. B.E.
\nBillimoria & Co. Pvt. Ltd. opined that similar goods manufactured by
\nothers do not attract the provisions of the Central Excise Act. It is stated
\nthat the same bench of the Tribunal in its judgment dated 10.5.2004, in
\nRagunath Ramchandra Shanbhag (supra), came to a similar conclusion.\n<\/p>\n
12.\tDuring the period in question being 1993-94, no direct decision on
\nthe point involved was available.  It was noticed that different benches of
\nthe Tribunal in different cases had  rendering their  decisions differently. In
\nthe case of Billimoria (supra), it was categorically held that manufacture of
\nPSC Girders would not attract the provisions of Central Excise Act, 1944.\n<\/p>\n
13.\tCorrectness of Billimoria (supra) was questioned by another Bench
\nof the Tribunal and the matter was referred to a larger Bench. The larger
\nBench in Asian Techs Ltd. (supra) relying upon or on the basis of a large
\nnumber of decisions of this Court opined that the excise duty was payable
\nand the principles of works contract would not be applicable in a  case of
\nthis nature.  We, therefore, accept the contention of the learned counsel
\nthat it was not a case where element of suppression extended to apply to
\nextended period of limitation. It is also  not a case where the appellant did
\nnot plead bona fide. It is furthermore not a case where the Tribunal and
\nconsequently this Court, could have arrived at a finding that the appellant
\ntook recourse to suppressio veri.\n<\/p>\n
14.\tActs of fraud or suppression, it is well settled,  must be specifically
\npleaded. The allegations in regard to suppression of facts must be clear and
\nexplicit so as to enable the noticee to reply thereto effectively.  It was not
\nthe case of the revenue that the activities of the appellant were not known
\nto it.\n<\/p>\n
15.\tAdmittedly, when the first show cause notice was issued, the
\nextended period of limitation was not resorted to. A notice should
\nordinarily be issued within a period of six months (as the law then stood)
\ni.e. within the prescribed period of limitation but only in exceptional cases,
\nthe said period could be extended to 5 years. When in the original notice,
\nsuch an allegation had not been made, we are of the opinion that the same
\ncould not have been made subsequently as the facts alleged to have been
\nsuppressed by the appellant were known to them.\n<\/p>\n
16.\tIn P & B Pharmaceuticals (P) Ltd. vs. Collector of Central Excise,<\/a>
\n[2003 (153) ELT 14 (SC)], this Court held as under:\n<\/p>\n
“19. However, Mr. Jaideep Gupta submits that the
\nTribunal did not accept that here has been assignment of
\nlogo in favour of the assessee. We are unable to accept
\nthe contention of the learned counsel. The tenor of the
\norder, ‘the assessee had produced certain documents such
\nas registration form, trade mark authorities assigning the
\ntrade mark to them but the fact remains that there was
\nmaterial evidence by way of seizure of goods
\nmanufactured by M\/s. P & B Laboratories bearing the
\nsame logo much after the alleged transfer of trade mark
\nto the appellants” discloses that the Tribunal accepted
\nthat there has been an assignment but proceeded to deal
\nwith the case of inapplicability of the exemption under
\nthe notification on the ground that the logo was being
\nused by M\/s. P & B Laboratories also. We have already
\nindicated above that use of logo of the manufacturer by
\nthird parties is alien for purposes of denial of exemption
\non the strength of para 7 of the notification. In this view
\nof the matter, we are unable to uphold the order of the
\nTribunal denying the exemption to the assessee.\n<\/p>\n
20. In any event, the ground that the assessee has
\nsuppressed the fact that M\/s. P & B Laboratories was
\nalso using the logo for availing the benefit under the
\nnotification cannot be a valid reason to invoke the proviso
\nto Section 11A of the Act. There is no obligation on the
\nowner of a logo to make a roving enquiry to ascertain
\nwhether any other person is also using his logo and
\ndisclose it to the authorities to avert a possible allegation
\nof suppression of fact for purposes of invoking the
\nproviso.”\n<\/p>\n
17.\tYet again in Nizam Sugar Factory vs. Collector of Central Excise,
\nA.P.,<\/a> [2006 (197) ELT 465 (SC)] the ratio rendered in P & B
\nPharmaceuticals Ltd. (supra) has been reiterated stating:\n<\/p>\n
“Allegation of suppression of facts against the appellant
\ncannot be sustained. When the first SCN was issued all
\nthe relevant facts were in the knowledge of the
\nauthorities. Later on, while issuing the second and third
\nshow cause notices the same\/similar facts could not be
\ntaken as suppression of facts on the part of the assessee
\nas these facts were already in the knowledge of the
\nauthorities. We agree with the view taken in the aforesaid
\njudgments and respectfully following the same, hold that
\nthere was no suppression of facts on the part of the
\nassessee\/appellant.”\n<\/p>\n
18.\tIn the said decision, this Court followed the earlier judgment of the
\nDivision Bench of this Court in ECE Industries Limited  v. Commissioner
\nof Central Excise<\/a>  (2004) 13 SCC 719 = 2004 (164) ELT 236, wherein it
\nwas categorically stated:\n<\/p>\n
“6. Appellant was served with a second SCN by the
\nCollector on 16.7.1987 alleging that the appellant was
\nsupplying carbon dioxide to another unit as per
\nagreement dated 19.3.1983; that they had not taken
\nnecessary licence; had not followed    the procedure
\nprescribed under the rules; and had not discharged duty
\nliability. The said SCN covered the period of assessment
\nyears 1982-83 to 1986-87. Appellant responded to the
\nsecond SCN and took the plea that the SCN under
\nconsideration was practically a repetition of the
\nallegations contained in the SCN dated 28.2.1984 and for
\nthe period April, 1982 to September, 1982 the
\ndepartment had raised demands under two different
\nSCNs. It was pointed out that carbon dioxide in the
\nimpure form was not marketable as it also contained
\ncarbon monoxide in lethal proportions. It was contended
\nthat they were under bona fide belief that since such
\nimpure carbon dioxide was not exigible to payment of
\nduty, they were not required to file either Classification
\nList or the Price List or take out licence. It was submitted
\nthat resorting to extended period of limitation under
\nSection 11A(1) was not justified in the circumstances of
\nthe case. Appellant was served with the third SCN on
\n12.9.1988 for the period 16.3.1988 to 27.6.1988 on the
\nsame allegations. Assessee filed its reply in terms of the
\nearlier replies i.e. reply to SCN dated 16.7.1987. The
\nadjudicating authority did not accept the appellant’s
\ncontention and the  demands raised in the SCN were
\nconfirmed.\n<\/p>\n
\t\txxx\t\t        xxx\t                   xxx\n<\/p>\n
8.\tWithout going into the question regarding
\nClassification and marketability and leaving the same
\nopen, we intend to dispose of the appeals on the point of
\nlimitation only. This Court in the case of P & B
\nPharmaceuticals (P) Ltd. v. Collector of Central Excise<\/a>
\nreported in (2003) 3 SCC 599 = 2003 (153) ELT 14
\n(SC) has taken the view that in a case in which a show
\ncause notice has been issued for the earlier period on
\ncertain set of facts, then, on the same set of facts another
\nSCN based on the same\/similar set of facts invoking the
\nextended period of limitation on the plea of suppression
\nof facts by the assessee cannot be issued as the facts were
\nalready in the knowledge of the department”\n<\/p>\n
19.\tFurthermore, extension of the period of limitation entails both civil
\nand criminal consequences and, therefore, must be specifically stated in the
\nshow cause notice,  in absence whereof the Court would be entitled to raise
\nan inference that the case was not one where the extended period of
\nlimitation could be invoked.\n<\/p>\n
[See Commissioner of Central Excise, Chandigarh vs. M\/s. Punjab
\nLaminates Pvt. Ltd.,<\/a> (2006 (7) SCC 431)]<\/p>\n
20.\tAnother aspect of the matter cannot also be lost sight of. Appellant
\nas also the Konkan Railawy raised a definite plea of bona fide. Such a plea
\nhad not been rejected. As a matter of fact, while considering imposition of
\npenalty under Section 11A of the Act, the Commissioner has refused to
\nimpose any penalty upon the appellant on the premise that it was  not
\nguilty of any act of mala fide. We, therefore, keeping in view the facts and
\ncircumstances of this case, are of the considered view that the impugned
\njudgment cannot be sustained. It is set aside accordingly. We hold that the
\nRevenue was not justified in invoking the extended period of limitation in
\nthe instant case.\n<\/p>\n
21.\tFor the reasons aforementioned, the impugned judgment cannot be
\nsustained and it is set aside accordingly. The appeal is allowed. However,
\nin the facts and circumstances of the case, there shall be no order as to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S Larsen And Tubro Ltd vs The Commissioner Of Central … on 2 May, 2007 Author: S.B. Sinha Bench: S.B. Sinha, Markandey Katju CASE NO.: Appeal (civil) 2990 of 2006 PETITIONER: M\/s Larsen and Tubro Ltd RESPONDENT: The Commissioner of Central Excise, Pune-II DATE OF JUDGMENT: 02\/05\/2007 BENCH: S.B. SINHA & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-70784","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S Larsen And Tubro Ltd vs The Commissioner Of Central ... on 2 May, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-larsen-and-tubro-ltd-vs-the-commissioner-of-central-on-2-may-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S Larsen And Tubro Ltd vs The Commissioner Of Central ... on 2 May, 2007 - 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