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TMI Blog2010 (10) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an amount of Rs. 13,69,226/-, equivalent to the duty amount, under Section 78 of the Finance Act, 1994, besides penalty of Rs. 5,000/- under Section 77 of the said Act. 3. The challenge to the impugned order is essentially on the ground that the lower revisional authority while exercising powers under Section 80 of the said Act, ignoring the fact that the adjudicating authority had refrained from imposing penalty on account of failure on the part of the department to substantiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 concerned authority. On the contrary, before proceeding to impose the penalty under any of those provisions of law, the authority is expected to ascertain from the records as to whether the assessee has established that there was reasonable cause for the failure or default committed by the assessee. Undoubtedly, such a provision not to be found either in the Central Excise Act, 1944 or in the Customs Act, 1962. Being so, the decision of the Apex Court in the matter of UOI v. Dharamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 with the matter separately in accordance with the provisions of law and after hearing the parties. We make it clear that the issue in relation to the penalty aspect is kept open for appropriate decision in this regard by the adjudicating authority. Accordingly the impugned order as well as the order of the lower authority in the aspect of penalty is set aside and the matter is remanded to the adjudicating authority to deal with the limited issue regarding the pena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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