TMI Blog2019 (5) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... elements of fraud, collusion, wilful mis-statement and within 5 years if these elements are present. - In the impugned order the adjudicating authority held that these elements were not present and as well as dropped the proposal to impose penalty under Section 78. Therefore, only the normal period of limitation of 18 months applies. The 18 month period must be reckoned with respect to the relevant date indicated in Section 73(6) In the present case, since the assessee has filed periodical returns the date on which the return is so filed becomes the relevant date. The first set of returns were filed in the instant case on 19.09.2013 and therefore 18 months from this date will be 18.03.2015. The show cause notice was issued on 16.03.2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant submits that the delay was due to their financial difficulties and the entire amount of service tax which was due was paid by them. He also submits that this is not a case that they had suppressed the value of services rendered. In fact, they had declared the entire value of services in their ST-3 returns accurately which itself has been taken as basis by the department in the impugned order and the show cause notice. The relevant period is April 2012 to March 2013. Although the appellant paid the entire amount of service tax they have not paid the interest applicable under Section 75 of the Finance Act for the amounts paid by them. Therefore, a show cause notice dated 16.03.2015 was issued by the Commissioner of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Hindustan Insecticides Ltd., [2013 (297) ELT 332 (Del)] and Kwality Ice Cream [2012 (281) ELT 507 (Del)] that whatever limitation applies to the demand also applies to the interest on it. Therefore, unless provisions of fraud, collusion, wilful mis-statement etc., are invoked, the demand for interest has to be made within the normal period of limitation. It is his further submission that in the present case the element of fraud, collusion, willful mis-statement etc., are absent as has been admitted in the impugned order by the adjudicating authority himself. Therefore, of the total demand of interest covering the period April 2012 to March 2013 the demand for the period of up to September 2012 is time barred as the show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere under the rules made under this chapter, a periodical return, showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed; (b) Where no periodical return as aforesaid is filed, the last date on which such returns is to be filed under the said rules; (c) in any other case, the date on which the service tax is to be paid under this Chapter or the rules made there under. (ii) In a case whether the service tax is provisionally assessed under this Chapter or the rules made there under, the date of adjustment to the service tax after the final assessment thereof; (iii) In a ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand of interest and it needs to be upheld. 7. On the question of waiver of penalty under Section 76 and 77 Learned DR submits that there is nothing on record to substantiate any of the claims of the appellant. Regarding financial hardships and accounting problems, etc., there is no case to invoke of provisions of Section 80. Therefore, the appeal may be rejected. 8. I have considered the arguments on both sides and perused the records. On the first question of payment of interest, it is undisputed that the assessee has paid the service tax but not the applicable interest. Therefore, the department has issued the show cause notice to demand interest. There is no time limit in Finance Act 1994 for issuin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from their clients. This is not substantiated by any documents apart from the assertion by the appellant before me and before the adjudicating authority. The conduct of the appellant also does not inspire much confidence because if there were difficulties and do they had paid the service tax late, they should have also paid the interest along with it instead of waiting till a show cause notice is issued by the department and then contesting it. Under these circumstances, I do not find sufficient grounds to invoke the provisions of Section 80 and waive the penalty. 10. In view of the above, I find the impugned order is correct and needs no intervention. 11. The impugned order is upheld and the appeal is rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
