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2010 (2) TMI 1072 - BOMBAY HIGH COURTWhether, on the facts and circumstances of the case and on true and correct interpretation of the provisions in section 55 of the Bombay Sales Tax Act, 1959, the Tribunal was justified in holding that the order passed by the Appellate Deputy Commissioner levying for the first time the penalty under section 9(2A) of the Central Sales Tax Act, 1956 read with section 36(3)(d) of the Bombay Sales Tax Act, 1959 was passed in the second appeal in exercise of the powers under section 55 of the Bombay Sales Tax Act, 1959? Whether, on the facts and circumstances of the case and on true and correct interpretation of section 36(3)(c) of the Bombay Sales Tax Act, 1959, the Tribunal was justified in holding that the order passed by the Appellate Deputy Commissioner levying for the first time penalty under section 9(2A) of the Central Sales Tax Act, 1956 read with section 36(3)(d) of the Bombay Sales Tax Act, 1959 was not an original order passed in exercise of the powers under section 36 of the Bombay Sales Tax Act, 1959? Whether, on the facts and circumstances of the case and on true and correct interpretation of the provisions in section 55 of the Bombay Sales Tax Act, 1959, the Tribunal was justified in holding the appeal against penalty levied for the first time by the Appellate Deputy Commissioner, as a third appeal and in dismissing it on the ground of its being not maintainable? Held that:- In the present case, admittedly, penalty was not levied initially at the time of passing the assessment order but the same was levied by the Deputy Commissioner of Sales Tax (Appeals) in the second appeal. Plain reading of section 55(6)(b) of the BST Act, 1959 shows that the appellate authority may confirm or cancel the order against which the appeal is preferred or vary it so as to either enhance or to reduce the penalty. Thus the Deputy Commissioner of Sales Tax (Appeals) erred in levying the penalty for the first time in appeal. The order passed by the Deputy Commissioner of Sales Tax (Appeals) dated December 4, 1999 imposing penalty on the applicant for the first time in exercise of appellate powers is erroneous and without authority of law. In favour of assesse.
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