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TMI Blog2022 (9) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee for the said particular period. Resultantly, Rule 12 (6) (the amended one) will actually not be applicable upon the appellant for the period during which NIL returns were filed. With regard to the remaining 13 returns, from the aforesaid table of show cause notice that returns though have regularly been filed but with delay, it is clear that the factum of said delay was in the notice of department since December 2014. Raising this issue in ACS scrutiny of the year 2019 cannot give the benefit to the department for invoking the extended period of limitation. - Otherwise also extended period can be invoked only in the case when there is willful mis-declaration or willful suppression. Further, perusal of Rule 12 (6) of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,67,709/- along with the interest at appropriate rate and the proportionate penalty. It is submitted that Original Adjudicating Authority had rejected the entire proposal except confirming the demand of late fee of Rs.5,42,700/-. Commissioner (Appeals) has upheld the said order. Learned Counsel further submitted that both the authorities have failed to consider the fact that for most of the period in question the payable central excise duty has been shown as NIL in the respective ER-1 returns. Late fee on account of delay in filing such NIL returns is therefore wrongly imposed. It should not have been demanded as the returns are to be filed by the person who is liable to pay tax and NIL returns means that there was no liability of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity in the said order, the appeal in hand is prayed to be dismissed. 6. After hearing the rival contentions and perusing the entire records, I observe and hold as follows: 6.1 The appellant herein is observed to have been engaged in manufacturing and supply of animal/vegetable/mix fertilizers, insecticide etc. and related pharmaceutical products. On ACES scrutiny of appellant s records by the department it came to its notice the appellant had filed that ER-1 returns, with substantial delay during the period December 2014 to June 2017 and that the central excise duty has been paid only through utilization of Cenvat credit account. Based on those observations that vide Show Cause Notice No. 1649 dated 25.06.2020 in addition to the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where defined the term assessee. Since the Central Excise Act and the Finance Act are the statutes charging duty/tax, the respective provisions have to be considered pari materia. As there is no definition of assessee in Central Excise Act, by virtue of Section 83 of the Finance Act, 1994 the definition of assessee given in the Finance Act, 1994 is hereby adopted. In light thereof, it is held that Rule 12 (6), even after amendment, is applicable on such a person who is liable to pay duty/tax. 8. As apparent from the table given in para 5.2 of the impugned show cause notice, it is observed that out of alleged 31 delayed returns, 18 returns therein are NIL returns i.e. for the respective period of said returns i.e. the appellant was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action against the appellant during the prescribed period for taking the said action. Otherwise also extended period can be invoked only in the case when there is willful mis-declaration or willful suppression. 10. There is no iota of any evidence nor even of any allegation about any such positive act on part of appellant which may amount to willful suppression on part of the appellant. Since the tax admittedly stands already paid by the appellant no question of intention to evade tax arises. It is clear that the present case does not come under the purview of proviso to Section 73 (1) of the Finance Act, 1944. Hence, it is held that demand of late fee w.r.t. to the remaining 13 returns in the table of show cause notice gets hit by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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