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2023 (8) TMI 113 - KERALA HIGH COURTLevy of penalty in terms of Section 47(6) of the KVAT Act - gold ornaments brought into Cochin by the petitioner were in fact taken back to Mumbai by the petitioner on the same day or not - scope of term “baggage” for the purposes of the Explanation I to S. 46 (3) of KVAT Act - HELD THAT:- It is not in dispute that in respect of the amount of Rs. 15 lakhs that was paid by the petitioner towards alleged tax due on the said consignment, he has disputed his tax liability by preferring an application for refund, which has not been adjudicated by the intelligence officer till date. Rather than issue a direction to the intelligence officer to adjudicate the matter at this belated stage, it is felt that on account of lapse of time this aspect can now be adjudicated by the Appellate Tribunal, which is the final fact finding authority, after calling for the refund application filed by the petitioner from the Intelligence officer concerned. The other issue raised by the petitioner, namely whether for the purposes of imposition of penalty under Section 47 of the KVAT Act, the transportation of gold ornaments as personal luggage would have any implication considering the provisions of Explanation 1 to Section 46(3) of the KVAT Act, also has to be considered by the Appellate Tribunal. The said aspect although specifically raised by the petitioner in the appeal before the Tribunal and noticed by the Tribunal at paragraph 3(2) of the order impugned herein, was not adverted to in the operative part of the order of the Tribunal. The issue requires to be considered by the Tribunal since it may have a bearing on the legality of the penalty imposed on the petitioner. Matter remanded back to the Tribunal for a fresh adjudication of the matter - appeal allowed by way of remand.
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