2017 (5) TMI 1173

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....eof. 2. In view of the limited question involved, it is not necessary to set out the facts in detail. It is sufficient to note only a few facts. The Assistant Excise and Taxation Officer-cum-Assessing Authority (AETO), Panchkula, by an order dated 30.12.1998, imposed a penalty of Rs. 65,500/- under section 37(6) of the Act. The order was passed on account of the petitioner's vehicle having allegedly been found to have been unloaded in the respondents/assessees' premises without the requisite documents. The documents were found in the name of another party. It was accordingly held that the goods were at the respondents/assessees' premises without the necessary documents and the consignment was, therefore, treated as being without the n....

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.... by the Commissioner, to the Tribunal. (2) An order passed in appeal by the Deputy Excise and Taxation Commissioner or the officer appointed by the State Government under Clause (a) of Sub-section (1) or by the Commissioner or the officer appointed by the State Government under Clause (b) of that subsection shall be further appealable to the Tribunal. (3) The appellate authority shall not for the first time, receive in evidence on behalf of any dealer in any appeal, any account, register, record or document unless for reasons to be recorded in writing, he considers, that such account register, record or documents is genuine and that the failure to produce the same before the authority below was for reasons beyond the control of the de....

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....ed in relation to an appellate authority other than the Tribunal, an appellate authority may pass such order on appeal as it deems to be just and proper, including an order enhancing the amount of tax or penalty or interest or all under this Act. (7) An assessing authority may challenge in appeal before the Tribunal, the order of the officer on whom the State Government has conferred the powers of the Commissioner under Sub-section (2) of Section 40, within one year from the date of the order appealed against. (See rule 55 to 58 & 61). SECTION 40 [REVISION] (1) The Commissioner may on his own motion call for the record of any case pending before, or disposed of by, any officer appointed under sub-section(1) of section 3 of the A....

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....des us to read a limitation to this effect into sub-section (2) of section 39. If the Legislature intended restricting the right of appeal to assessees, it would have provided so expressly. We do not even read such an intendment into sub-section (2) of section 39. 6. The Tribunal in both the impugned orders came to conclusion that the appeal was not maintainable by reading section 39(7) with section 40. In the main order dated 12.08.2005, it was held that the AETC could act to revise the order of the JETC under section 40(1). It was observed that the Legislature did not provide for an appeal at the instance of the State against an order which could be corrected in revision by the revisional authority under section 40(1). By the order on ....