9911796707
TMI Blog2022 (9) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... y for filing returns has been considered for a period from December' 2014 to June' 2017. 2. I have heard Mr. R.K. Verma, learned Counsel for the appellant and Mr. Ishwar Charan, learned DR for the department. 3. Learned Counsel for the appellant has mentioned that the show cause notice was issued for proposing, in addition to the demand of impugned amount of late fee recovery of the Cenvat credit amounting to Rs.40,67,709/- 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 au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned DR has laid emphasis upon the findings in para 8 of the Order-in-Appeal. It is mentioned that Commissioner (Appeals) after considering Rule 12 (6) of Central Excise Rules and the amendment therein w.e.f. 01.03.2015 has rightly held that the adjudicating authority is left with no discretion to forego the late fee for delayed filing of returns even if the returns are 'NIL' Returns. Impressing upon no infirmity 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 pharmaceu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) used words "person who is liable to tax" instead of word "assessee". The perusal makes it clear that the provision is applicable upon the assessee who has failed to file the return in the specified period given in the said rule. 'Assessee' in terms of sub-section (7) of Section 65 of the Finance Act, 1994 is defined to mean a person liable to pay tax and includes its agent. Central Excise Act has no 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The fact rather remains is that the allegations of delay were in the notice of the department and that it failed to take any 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 will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the normal period of limitation. The demand for entire period is not sustainable. 12. Further perusal of Rule 12 (6) of Central Excise Rules shows that the late fee cannot be charged over and above Rs. 20,000/- for a period of delay in submission of each return. Seen from that angle, the demand of Rs. 5,42,700/- as late fee is held to be on excessive side. 13. In view of the entire above discussion, it is held that there is no restriction in Rule 12 (6) as has been mentioned by Commissioner (Appeals) in its findings at para 8 of order under challenge. Above all the entire period of demand is held to be beyond the normal period for which the demand could have been raised. Resultantly, the order of demand even for late fee on delayed ret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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