TMI Blog2021 (4) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was conducted in the appellant s premises and the entire aforesaid amount stand paid till May, 2015 i.e. much prior before the issuance of the impugned show cause notice dated 27.09.2016 as stands clear from the table in the show cause notice as well as reproduced in the order-in-original. Even an amount of ₹ 59,900/- for delayed filing of return has been made. It is apparent that the show cause notice has been issued after a period of almost 1 years from the date of the payment of entire demand. In the present case, where the entire payment has been paid even prior the order of assessment is being communicated to the appellant, the decision of Hon ble Apex Court in M/s Lark Chemicals Pvt. Limited [ 2016 (5) TMI 190 - SC ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon an intelligence by the Officers of Anti Evasion branch of Central Excise Commissionerate, Alwar that the office of M/s ECR Builders i.e. the appellant was searched on 31.01.2005. His residence premises was already searched vide Warrant No. 05/2015-ST dated 29.01.2015. Several summons were issued to the Partners of the appellant. However, all required documents were not provided by the appellant except that a chart showing the payment liability towards service tax and the deposits thereof made by the appellant. Based thereupon the Department vide show cause notice No. 7602 dated 27.09.2016 proposed the demand of ₹ 40,79,178/- towards service tax liability of the appellant alongwith interest and the penalties under Section 78 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Department except for the payment details. Accordingly, the Department had no other option but to raise the demand based upon the appellant submissions and based upon the record as was recovered during the search. Such conduct of the appellant is sufficient to allege suppression and entitle the Department to invoke the extended period of limitation. Learned DR placed reliance upon the decision of Hon ble Apex Court Commissioner of Service Tax, Mumbai vs. Lark Chemicals Pvt. Limited in civil appeal No. 3890 of 2011 has held, It can by no stretch of imagination be said that the adjudicating authority has even a discretion to levy duty less than what is legally and statutorily leviable . Accordingly, ld. DR prayed for dismissal of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of the payment of entire demand. Section 78 of the Finance Act under which the penalty in the present case has been imposed provides that where the Service Tax and interest payable thereupon is paid within 30 days from the date of communication of the order of Central Excise Officers determining such service tax, the amount of penalty is liable to be paid by such person under the first proviso shall be 25% of such service tax. In the present case, where the entire payment has been paid even prior the order of assessment is being communicated to the appellant, to my opinion, the decision of Hon ble Apex Court in M/s Lark Chemicals Pvt. Limited is not applicable to the present case. 6. As far as the imposition of penalty is conce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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