TaxTMI 
TaxTMI 
2026 (6) TMI 1357
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....24.05.2016 came to be issued to the appellant proposing recovery of Central Excise duty amounting to Rs.22,60,02,236/- on the amounts relatable to Royalty and Stowing Excise Duty for the period from 01.04.2015 to 14.06.2015, along with applicable interest and penalty under Section 11AC of the Central Excise Act, 1944. 2.1. The appellant contested the said proceedings by filing a detailed reply dated 29.06.2016, wherein the allegations contained in the Show Cause Notice were denied and disputed. The appellant, inter alia, contended that the quantification adopted in the notice suffered from computational errors and also placed on record particulars regarding payment of Central Excise duty already made by them during December, 2015. 3. Upon adjudication, the Ld. Commissioner of Central Excise, Customs and Service Tax, Rourkela, vide the impugned Order-in-Original dated 07.12.2016, accepted the appellant's contention regarding certain computational errors and also took note of the payments of duty already made by the appellant. The ld. adjudicating authority further recorded that the appellant is a Public Sector Undertaking and that there was no mala fide intention to evade paym....
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.... * Right Resource Management Service v Commissioner of CGST, Central Excise and Customs, Dehradun [(2024) 15 Centax 362 (Tri.-Del)] * The Braithwaite Burn And Jessop Construction Company Limited (Formerly known as BHARAT BHARI UDYOG NIGAM LIMITED) v Commissioner of Service Tax-II, Kolkata [Final Order No. 75530/2026 dated 21.04.2026 in Service Tax Appeal No.75391 of 2016]. (iii) It is, therefore, submitted that demand for the month of March 2015 having been issued after the normal period of limitation cannot legally survive. 5.1. Further, by way of supplementary written submissions filed on 16.06.2026, the Ld. Counsel for the appellant has made the following additional submissions: - (i) The excise return in Form ER-1 for the month of April-2015 was required to be filed within 10.05.2015. However, the assessee appellant filed the said return belatedly on 26.05.2015. (ii) That the 'relevant date' for the purpose for issuance of Show Cause Notice (SCN) need to be considered as 10.05.2015 and not 26.05.2015, and accordingly, the last for issuance of SCN under normal period of limitation expired on 10.05.2016 and not 26.05.2016. (iii) Th....
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....on to change the relevant date by any subsequent development such as, in this case, the assessee filing the return on 1 November 2012. 22. The proposition of the Revenue that the relevant date in this case must be 1 November 2012 cannot also be accepted because it would mean that the assessee would be worse off by filing the return with delay than by not filing it at all. 23. Thus, the proposition of the department that the date on which the return is filed after the due date should be reckoned as the relevant date cannot be accepted because: (a) once the assessee does not file the return by the due date, the relevant date sets in and there is no provision in the law to modify this relevant date by any subsequent events including filing of the returns; and (b) because it results in absurdity because the assessee will be worse off by filing the return late than by not filing it at all. Hence it needs to be rejected and we do so. The Constitution Bench of Supreme Court in the Commissioner of Customs v. Dilip Kumar & Company 2018 (361) E.L.T. 577 (SC) held that in interpreting statutes based on plain language, absurdity should be avoided. P....
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.... demand which was already dead on 10.05.2016 could not be revived by considering the subsequent amendment on 14.05.2016 whereby the normal period of limitation of one year has been increased to two years. Reliance in this regard is placed upon the decision of the Hyderabad Bench in the case of Aveco Technologies Pvt. Ltd. vs Commissioner of Cus., Hyderabad [2018 (362) E.L.T. 624 (Tri. Hyd.)] as also upheld by the Hon'ble Supreme Court. 5.2. On the basis of the above submissions, the appellant prays for setting aside the demand for the month of April 2015 as being beyond normal period of limitation, the demand of interest on central excise duty on the element of Royalty, if payable, as well as the demand of central excise duty on Stowing Excise Duty. 6. On the other hand, the Ld. Authorized Representatives of the Revenue appearing before us have reiterated the findings in the impugned order. In particular and without prejudice, it is their contention the appellant is liable to pay central excise duty on the element of Royalty for the normal period of limitation. As regards the contention of the appellant that for computing the duty liability for the normal period of limitation....
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....tion, and also that no duty of excise is payable on 'Stowing Excise Duty'. In absence of any decision to the contrary available on record, we do not find any reasons to deviate from the above view expressed by this Tribunal in M/s. Central Coal Fields Ltd. (supra). Therefore, respectfully following the ratio laid down in the decisions cited supra, we uphold the demand of central excise duty on the element of 'Royalty' to the extent it pertains to the normal period of limitation and set aside the entire demand of central excise duty on the element of 'Stowing Excise Duty'. 8.2. Further, in M/s. Central Coal Fields Ltd. (supra), as regards the levy of interest, in terms of the decision of the Principal Bench of the Tribunal in the case of M/s. South Eastern Coalfields Ltd. v. Commissioner of Central Excise & Service Tax, Raipur & connected appeals [Final Order Nos. 50227-50256 of 2026 dated 06.02.2026 in Excise Appeal No. 56177 of 2013 & ors. - CESTAT, New Delhi], it was observed that no interest is payable on account of the duty liability accrued towards 'Royalty'. It is observed that in the above decision of in the case of M/s. South Eastern Coalfields Ltd. (supra), the Principa....
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....mand becomes a 'dead' demand, which cannot even be revived by the subsequent amendment on 14.05.2016 whereby the normal period of limitation has been increased. On the basis of the above submission, it is the case of the appellant that the demand for the month of April, 2015 will not come within the normal period of limitation. 9.1. In this connection, we have referred to the relevant provisions of Section 73 of the Finance Act, 1994. For ease of reference, sub-section (6) of Section 73 of the Act is reproduced below: - "(6) For the purposes of this section, "relevant date" means, - (i) in the case of taxable service in respect of which service tax has not been levied or paid or has been short-levied or short-paid - (a) where 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 return is to be filed under the said rules; (c) in any other case, the date on which the service tax is to....
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....73(6) is the date on which the return is filed or the date prescribed under the Rules, if no return is filed. It has also to be noticed that when there is an allegation of short levy or short payment or erroneous refund on the grounds of : (a) fraud, (b) collusion, (c) willful mis-statement, (d) suppression of facts; or (d) contravention of any of the provisions of this Chapter or the rules made thereunder with intent to evade payment of service tax, then the period of limitation is five years which period stands substituted for eighteen months as seen from the proviso to sub-section (1) of Section 73. 7. The assessment years, as we notice is of the years 2015-16 to 2017-18. The demand-cum-show cause notice itself, at page-11 in the 28th paragraph, indicates that the noticee filed ST-3 return for the period April, 2015 to September, 2015 on 25-72016 while returns for the remaining relevant periods were filed thereafter. Hence, in terms of the provisions of Section 73(6) (i) (a) of the Act, the earliest relevant date in the present case is 25-72016 for the purpose of calculation of period of limitation under the proviso ....
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....returns by Rule 7 mandating a half yearly return in ST-3 or ST3A along with Form TR-6, in triplicate for the months covered in the half-yearly return. The prescription is that the half yearly return shall be filed by the 25th of the month following the particular half-year. Hence, in any financial year, the first half yearly return is to be filed on or before 25th of October and the next, on or before 25th of April. Rule 7C also prescribes the manner in which a delayed return can be filed, which is by payment of an amount; in the event of fifteen days delay being five hundred rupees; beyond fifteen days and within thirty days, one thousand rupees; and beyond thirty days one thousand rupees together with one hundred rupees for every day from the thirty first day till the date of furnishing the said return, subject to maximum of the amounts specified in Section 70 of the Act; which is twenty thousand rupees. 11. In this context, it has to be pertinently noticed that the relevant dates under clause (a) & (b) of subsection (6) of Section 73 is insofar as return filed within time as provided under the Rules or in the absence of any return being filed. Clause (c) of Section 73 (....