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2017 (9) TMI 165 - HC - Service TaxScope of SCN - Whether the Tribunal, while remanding the matter, addressed any of the issues or questions which were not included in the show-cause notice? - Held that: - It would appear from the SCN that the allegations made were on disclosures by his client as required by the department upon having conducted inquiry and investigation. No part of the information furnished by his client could be demonstrated to be incorrect. The question of suppression cannot arise and accordingly the SCN carries only a bald allegation in regard thereto. On top of that by the impugned order the Tribunal purported to find that the adjudicating authority did not cause proper inquiry nor investigation, to cite that as reason for the directions of remand. By the impugned order there was remand of the issues for reconsideration on the aforesaid directions which amount to taking of additional evidence. The Tribunal being an appellate forum exercised its power to remand as well as give directions for taking additional evidence. Power of remand and directions for taking additional evidence by an Appellate Court is provided for in Order 41 Rules 23, 23A and 27 to 29 of the Code of Civil Procedure, 1908. The Code separately provides for remand and production of additional evidence in Appellate Court which is not so under section 35C of the Central Excise Act, 1944. The power of remand prescribed by the Code is that where the Court, from whose decree an appeal is preferred, disposed of the suit upon a preliminary point or the case was disposed of otherwise than on a preliminary point, the decree is reversed in appeal and a re-trial is or considered necessary, the Appellate Court will exercise the power of remand in both such instances. However, this power of remand requires the Court from whose decree appeal was preferred, to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. Penalty - Held that: - no part of the adjudicated demand can be said to be outside the purview of the scope of section 73 prior to its substitution. Before that authority no ground had been taken that the SCN did not disclose reason to believe omission or failure on the part of the assessee or that such omission or failure was not covered under clause(a) sub-section (1)in section 73 as it stood before substitution. There are specific findings of the adjudicating authority regarding omission, failure and suppression by the appellant on the allegations made in the SCN - On a reading of sections 73, 78 and 83A we are unable to hold that upon determination of a demand, where the extended period of limitation has been invoked, the adjudication of penalty that stand attracted is to be made by initiating a separate proceeding. The penalty adjudged and direction made in regard thereto by the adjudicating authority is clearly under the provisions of section 78 as it stood before substitution - suppression and imposition of penalties are in favor of the Revenue. Appeal allowed - decided partly in favor of appellant.
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