TMI Blog2018 (3) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... teshwara Earthmovers by not filling return for a period of over three years and not by paying tax despite collecting the same from the service recipients even though they had taken the registration have made themselves liable to penalty under Section 78 also. The penalty equal to the duty amount confirmed under Section 78 is imposed however the noticee is given an option to pay only 25% of the penalty amount - appeal allowed in part. - Appeal No. ST/85319/15 & Appeal No. ST/85564/15 ST/CO/91092/15 - A/85439-85440/2018 - Dated:- 28-2-2018 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri V.S. Apte, Advocate for Appellant Shri Vivek Dwivedi, Asstt. Commr. (A.R) for Revenue ORDER Per : Raju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lance amount of duty in cash was already paid by them and they filed their returns. 2.1. Ld. Counsel argued that it was a case of delayed filing of returns as they had discharged cash liability at the correct time. Moreover, the notice and the order-in-original both recognized the admissibility of credit which they have utilized in the returns filed by them. 2.2. The Ld. Counsel argued that in these circumstances there cannot be any liability to pay any interest as they had discharged the entire liability timely and before filing the revised return . He argued that the credit was available to them at the material time and the only default on their part was not filing of their return. He pointed out that for the said default they had p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the actual date of payment. If viewed from this perspective, in the present case, inasmuch as the tax has been paid only on 15/02/2007 by debit in the CENVAT account, whereas the due dates for payment of tax were 05/09/2006 (sic) and 05/02/2007, there are delays of 102 days and 10 days in payment of tax and for these delays, the respondent is certainly liable to pay interest. Therefore, the impugned order is set aside to the extent of dropping of interest liability and we hold that the respondent is liable to pay interest for the above period of 102 days and 10 days respectively as proposed in the show cause notice. It is seen that the appellants have not cited any decision in their favour. In the appeal memorandum also they have mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the appellant had paid after adjustment discharging the cenvat amount the balance of duty in cash. This is an erroneous assertion in so far as a duty paid on inputs/services by M/s. Venkateshwara Earthmovers can become credit only when the same is claimed by filling a return under the cenvat credit rules. Thus it is apparent that M/s. Venkateshwara Earthmovers failed to pay the duty in the entire period of three years. They had also not filled any ST-3 returns however they had already taken registrations. The amounts paid by the appellants in cash also take the shape of duty only when the same are adjusted by filling the return against the duty liability. In absence of such adjustment of amounts paid against a existing duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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