9911796707
TMI Blog2025 (3) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... ;, 'Erection, Commissioning and Installation Services' 'Works Contract Services and for paying service tax on Goods Transport Agency (GTA) services under Reverse Charge Mechanism under Section 68(2) of the Finance Act, 1994. 2.2 During the course of audit of their records for the period 2014-15 to 2017-18 (up to June, 17), certain discrepancies detailed below were noticed: * they had taken CENVAT credit of Rs, 2,55,917/- on the strength of bills/Invoices covering goods viz. Panel enclosures, Volt foot motor, Motor which were supplied by them as traded goods to their clients along with their own manufactured goods. On being pointed out the appellant paid an amount of Rs.2,55,917/- through GSTR-3B for the month of March 2019. * they had filed ER-3 for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the said demand II. Interest on the above demand at the appropriate rate should not be demanded and recovered from them under Section 11 AA the Central Excise Act, 1944. III. Penalty should not be imposed upon them under Section 11AC of the Central Excise Act, 1944 read-with Rule 15 of CENVAT Credit Rules, 2004. N IV. Service Tax amounting to Rs. 2,39,417/- (Rupees Two Lakh Thirty Nine Thousand Four Hundred Seventeen only), should not be demanded and recovered from them under the provisions of proviso to Section 73(1) of the Finance Act, 1994. As the party has already paid an amount f Rs.2,39,417/ through GSTR-3B for the month of March 2019, as to why the same should not be appropriated against the said demand V. Interest at the appropriate rate on the 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 adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand have been confirmed and the amounts so deposited appropriated against the demand of irregularly availed CENVAT Credit and Service Tax short paid. Penalties have been imposed on them equivalent to the amount of irregularly availed CENVAT Credit and short paid. * They have paid the interest also however no cognizance has been taken of the interest paid. She will provide the details of payment of interest within 10 days. * As they have already deposited the duty along with interest before the issuance of show cause notice penalties imposed upon them cannot be justified. 3.3 Authorized representative reiterated the findings recorded in the impugned order. 4.1 I have considered the impugned order along with the submissions made in appeal and during the 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 us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir part in the present case and for the same reason penalty under Section 78 of the Finance Act, 1994 is not imposable. On the contrary I find that the appellant did not disclose the facts of availing inadmissible credit and non-payment of Service Tax came to the notice of the department only when Audit was conducted. Merely because the transactions were reflected in the books of account, cannot be a reason for non-invocation of extended period. Fact is that the said books were produced only before Audit and not voluntarily to the department earlier. That Section 11A and Section 11AC of the Central Excise Act, 1944 and Section 73 and 78 of the Finance Act, 1994 specifically recognize such cases as suppression of facts with intent to evade payment of duty/tax when they 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules made thereunder. (3) Where the Central Excise Officer is of the opinion that the amount paid under clause (b) of sub-section (1) falls short of the amount actually payable, then, he shall proceed to issue the notice as provided for in clause (a) of that sub-section in respect of such amount which falls short of the amount actually payable in the manner specified under that sub-section and the period of 1 [two years] shall be computed from the date of receipt of information under sub-section (2). Section 73 (3) of the Finance Act, 1994 (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been 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-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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