TMI Blog2010 (10) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 21-10-2010 - Justice R.M.S. Khandeparkar, P. Karthikeyan, JJ REPRESENTED BY : Shri G. Shivadass, Advocate, for the Appellant. Shri D.P. Nagendra Kumar, Jt. CDR, for the Respondent. [Order per : Justice R.M.S Khandeparkar, President] . - Heard the learned advocate for the appellants and the learned Jt. CDR for the respondent. 2. This appeal arises from the Order-in-Revision dated 7-5-2009, passed by the Commissioner of Customs, Central Excise and Service Tax, Tirupati. Vide the impugned order, in exercise of powers under Section 80 of the Finance Act, 1994, the Commissioner has set aside the order passed by the adjudicating authority to the extent it refrained from imposing penalty and has imposed the penalty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dealing with the aspect of penalty, had refrained from imposing the penalty solely on the ground that the department had failed to substantiate the allegation of willful suppression or intentional evasion. Para 20 of the order passed by the Additional Commissioner is very clear in this regard. Undoubtedly, further discussion in relation to reported orders on the aspect of the powers to impose the penalty discloses that the original authority had exercised his discretion in this regard. 5. Perusal of Section 80 of the said Act, undoubtedly discloses that it will have overriding effect on the provisions of Sections 76, 77 78, in the sense that imposition of penalty under any of those provisions is not mechanical exercise by the concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (179) E.L.T. 93 (Tri.-Del.)] and in the case of Dharamendra Textile Processors (supra). Both the cases are in relation to the obligation under the statutory provisions of the Central Excise Act, 1944. 8. For the reason stated above, the impugned order passed by the revisional authority cannot be sustained. 9. While making it clear that by the above observations, we are not expressing any opinion as to whether the department has been able to substantiate the said allegation or not. In our considered opinion, since both the authorities below having not exercised their powers in relation to the aspect of penalty, both the orders cannot be sustained and are liable to be set aside and the matter be remanded to the original authority to deal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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