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TMI Blog2024 (8) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... pur - 302 005 (Raj.) is allowed. 2. This appeal has been filed by M/s Ganpati Plaza Owner's Maintenance Society against order-in-appeal No. 69 (RLM) ST/ JPR/2023 dated 01.03.2023. 3. Heard both sides. 4. It transpires from the facts of the case that order-in-original No. 43/DEM/ST/DC/Div-C/2021-22 dated 30.09.2021 was passed wherein the demand of service tax and interest against the appellant was confirmed. The penalty under section 77 (1) (a), 77 (2) and section 78 was also imposed. The penalty under section 78 was imposed @ 50% of the demand. Both, the appellants as well as Revenue challenge the said order before the Commissioner (Appeals). Commissioner (Appeals) vide order No. 37 (RLM) ST/JPR/2023 dated 16.02.2023 set aside the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic returns, second SCN invoking extended period would be difficult to sustain as the department comes in possession of all the facts after the time of first SCN. Therefore, as a matter of abundant precaution, it is desirable that after the first SCN invoking extended period, subsequent SCNs should be issued within the normal period of limitation". 11. I find that in the case of ECE Industries Limited versus Commissioner of Central Excise, New Delhi {2004 (164) E.L.T. 236 (S.C.)} in 4 and 5 para Hon'ble Supreme Court held that - "4. In the case of M/s. P & B Pharmaceuticals (P) Ltd. v. Collector of Central Excise reported in [2003 (2) SCALE 390], the question was whether the extended period of limitation could be invoked where the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter. It has been held that in such circumstances, it could not be said that there was any wilful suppression or mis-statement and that therefore, the extended period under Section 11A could not be invoked. 5. In our view, the principles laid down in above case fully apply here. As earlier proceedings in respect of same subject-matter were pending adjudication it could not be said that there was any suppression and the extended period under Section 11A was not available." On the ratio laid down in this judgment it must be held that once the earlier Show Cause Notice, on similar issue has been dropped, it can no longer be said that there is any suppression. The extended period of limitation would thus not be available. We are unable to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals) has allowed the appeal of the Revenue enhancing the penalty. The said order was passed on 28.02.2023 i.e. subsequent to the earlier order No. 37 (RLM) ST/JPR/2023 dated 16.02.2023 dropping demand as well as penalties. It seems the earlier order dated 16.02.2023 of the Commissioner (Appeals) was not brought to the notice of Commissioner (Appeals) while passing the impugned order dated 28.02.2023. 6. It is noticed from the above findings of the Commissioner (Appeals) in order dated 16.02.2023 reproduced in paragraph 4 above that the entire proceeding has been set aside by Commissioner (Appeals) and consequently no demand and penalty survived. Since no penalty survived on account of order dated 16.02.2023 the question of enhan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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