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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 ..... subsequent order enhancing the penalty imposed is, therefore, totally wrong and passed by mistake due to non-production of earlier order dated 16.02.2023. The appeal filed by the appellant is allowed. The order impugned enhancing the penalty under section 78 is set aside and the appeal is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... EC vide Circular F. No. 96/1/2017-CX.1 dated 19.01.2017, which are reproduced as under :- "3.7 Second SCN invoking extended period : Issuance of a second SCN invoking extended period after the first SCN invoking extended period of time has been issued is legally not tenable. However, the second SCN, if issued would also need to establish the ingredients required to invoke extended period independently. For example, in cases where clearances are not reported by the assessee in the periodic return, second SCN invoking extended period is quite logical whereas in cases of willful mis-statement regarding the clearances made under appropriate invoice and recorded in the periodic returns, second SCN invoking extended period would be difficult to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised a demand on a similar issue and for an identical amount. That Show Cause Notice had been dropped. In our view the Tribunal was wrong in still holding that there was suppression of fact or material. This Court has in the case of ECE Industries Limited v. Commissioner of Central Excise, New Delhi reported in 2004 (164) E.L.T. 236 (S.C.) held as follows :- "4. In the case of M/s. P & B Pharmaceuticals (P) Ltd. v. Collector of Central Excise reported in [2003 (153) E.L.T. 14 (S.C.) = 2003 (2) SCALE 390], the question was whether the extended period of limitation could be invoked where the Department has earlier issued show cause notices in respect of the same subject-matter. It has been held that in such circumstances, it could not be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded period of limitation, cannot be issued as the facts were already within the knowledge of the department. 14. Accordingly, without going into the other aspects of the matter, I am of the view that the appeal filed by the appellants deserves to be allowed on the point of limitation itself. The appeal is therefore allowed". From the system the record has been checked and no appeal has been filed against the said order of Commissioner (Appeals) dated 16.02.2023 by the Revenue. 5. In a separate order, which is the impugned order in the instant case, wherein Revenue has approached the Commissioner (Appeals) for enhancing the penalty imposed under section 78, the Commissioner (Appeals) has allowed the appeal of the Revenue enhancing the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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