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TMI Blog2025 (3) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... out by the audit. That being so the proceedings for the recovery of the said amounts by issuing show cause notice under Section 11A of the Central Excise Act, 1944 or Section 73 of Finance Act, 1994 for the recovery of the amounts already deposited are bad in law and the penalties imposed equivalent to those amounts cannot be justified. Demand of interest - HELD THAT:- There is no clarity about the interest payment for the delay in payment of taxes/ duty. Appellant has claimed that they had paid the interest also which should have been apportioned against the demand of interest. However they have not produced any evidence in respect of the payment of interest. Time of ten days allowed on the date of hearing to the counsel to produce the details and evidence of payment of interest. However even after more than three months from the date of hearing nothing has been produced before me. Thus there are strong reasons to reject the claim made by the appellant towards the payment of interest. Accordingly the demand of interest upheld by the impugned order is again confirmed. Levy of late fee - HELD THAT:- Appellant has not challenged the late fee levied on the delay filing of their ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the quarter ending March, 2015 delayed by 1 day, December, 201,5 delayed by 4 days and June, 2017 delayed by 40 days. Thus, in terms of the provisions of Rule 12 of Central Excise Rules, 2002, the party was required to pay late fee @Rs. 100/- per day i.e. Rs,4,500/- but they had not paid the same. Hence, late fee of Rs. 4500/- is liable to be recovered from the party under Rule 12 of Central Excise Rules, 2002 read with Section 11A(1) of the Central Excise Act, 1944. * They had paid Rs.80,000/- Rs.49,000/- 8 Rs.20,000/ respectively aggregating to Rs.1,49,000/- to advocates for obtaining legal consultancy services. As per Section 68(2) of the Finance Act, 1994 read with Notification No. 30/2012-ST dated 20.06.2012, the party was required to pay Service Tax of Rs.21,950/-, involved on the payment of Rs.1,49,000/- under Reverse Charge Mechanism but they did not discharge their tax liability. On being pointed out, the party paid Service Tax of Rs.21,950/- through GSTR-3B for the month of March. 2019. * they had paid an amount of Rs.1,00,000/- & Rs.40,000/- aggregating td Rs. 1,10,000/- respectively to the goods transport agency for transport of goods. As per Section 68(2) of the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above demand at (IV) should not be demanded and recovered from them under Section 75 of the Finance Act, 1994: VI. Penalty should not be imposed upon them under Section 78 of the Finance Act, 1994. VII. Late fee of Rs,4500/- should not be demanded and recovered from the party under Rule 12 of Central Excise Rules, 2002 read with Section 11A(1) of the Central Excise Act, 1944. 2.4 The show cause notice was adjudicated as per order in original dated 30.06.2020 holding as follows: (i) I confirm the demand of wrongly availed CENVAT credit of Rs. 2,55,917/- (Rupees Two Lakh Fifty Five Thousand Nine Hundred Seventeen only) under the provisions of proviso to Section 11A(4) of the Central Excise Act, 1944 read with Rule 14 of CENVAT Credit Rules, 2004 for the Financial Year 2016-17. I order for appropriation of the amount of Rs. 2,55,917/- already paid through GSTR-3B for the month of March, 2019. (ii) I confirm the demand of interest amounting to Rs, 1,10,527/- (Rupees One Lakh 'Ten Thousand Five Hundred Twenty Seven Only) on amount mentioned at SI. No. (i), under Section 11AA of the Central Excise Act, 1944. (iii) I confirm the demand of penalty of Rs. 2,55,917/- (Rupees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of arguments. "7. With regard to denial of credit and confirmation of demand of Rs 2,55,917/-, contention of the appellant is that the credit of Central Excise duty paid on impugned items was availed as the same were used in installation and commission of modular kitchen. However, I find that they did not put forth any evidence that the said items such as panel enclosures, volt floor motor etc., were actually used in the manufacture of kitchen equipment or even parts thereof and that such parts were ultimately used in erection and commissioning of kitchen. Since no plausible explanation and acceptable evidence placed on record by the appellant in support of their averments, I uphold the denial of CENVAT credit and confirmation of demand thereof 8. The appellant has not put forth any grounds regarding confirmation of fee for late filing of ER-1 returns as also regarding demand of Service Tax on GTA Service under RCM. Therefore, I uphold the imposition of late fee and confirmation said component of demand. 9. The appellant although contended that they had received legal consultation from the persons / firms other than Advocates but in support of their contention they d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey provide lesser penalty in such cases. As such I hold that invocation of extended period for confirming demand and imposition of penalty is legal and proper. The case laws relied upon by the appellant are not applicable in the facts of the present case as the said decisions were delivered prior to amendment of the relevant provisions 13. The appellant has also contended that interest already paid by them has not been appropriated by the Adjudicating Authority. In this connection I find that it is trite law that Interest Is payable as a natural corollary to the confirmation of demand of duty/tax. Merely for technical reason of non-appropriation would not entail incorrect levy of interest Therefore, I uphold levy of interest on delayed payment of duty / Service Tax and in order to rectify the said technical mistake, which has in fact no implication otherwise, I order appropriation of the amount already paid by the appellant towards interest so demanded/ confirmed." 4.3 As I find that the appellant had paid the amounts towards the irregularly availed CENVAT Credit and Service Tax short paid by them on being pointed out during the audit and much before the issuance of show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the [Central Excise Officer] of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid: Provided that the Central Excise Officer may determine the amount of short-payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of "thirty months" referred to in subsection (1) shall be counted from the date of receipt of such information of payment. Explanation.1- For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may ..... X X X X Extracts X X X X X X X X Extracts X X X X
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