9911796707
TMI Blog2009 (3) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... Chaly appearing for the appellant/petitioner and Government Pleader for the respondent. The main grievance of the assessee is that the Commissioner had no jurisdiction to interfere with a remand order issued by the Deputy Commissioner in exercise of revisional power under section 45A(3) of the Kerala General Sales Tax Act. According to him the Commissioner is entitled to interfere with only "orders prejudicial to the interests of the Revenue" as referred to in section 37 of the Act and an order of remand in first revision by the Deputy Commissioner is not an order prejudicial to the interests of the Revenue. Counsel also relied on the decision of this court in Bismillah Trading Co. v. Intelligence Officer, Squad No. II, Agricultural Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la was corroborated and established. Based on the records obtained on search, penalty was proposed on the assessee. The assessee's case is that even though the assessee was heard both in the smuggling case booked at the time of seizure of the truck and in the penalty proceedings, he was not given an opportunity to crossexamine the driver. Counsel highlighted before us the violation of natural justice inasmuch as the assessee was not given an opportunity to crossexamine the driver. He has also relied on the decision of this court in Jose Pallissery v. Additional Sales Tax Officer [1993] 89 STC 165; [1993] 1 KLT 401, and contended that denial of opportunity to cross-examine affects the validity of the proceedings. The Government Pleader o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7(1) authorises the Commissioner to interfere with orders passed by the lower authorities which, in his opinion, are prejudicial to the Revenue. This is a case where the order interfered with is the first revisional order issued by the Deputy Commissioner under section 45A(3) of the Act on revisions filed against penalty orders. We have already found that penalty orders are based on evidence collected from the business premises of the assessee and the lack of opportunity to cross-examine the driver of the vehicle who gave the statement about the involvement of the assessee did not affect the validity of the proceedings. In fact, the Deputy Commissioner accepted the argument of the assessee about violation of natural justice and consequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee which is the view taken by the Commissioner as well, in his order issued under section 37 of the Act. We therefore uphold the order issued by the Commissioner rejecting the revision filed by the assessee and restoring the penalty order under section 37 after setting aside the order of the first revisional authority. Counsel for the assessee contended that the Commissioner has not considered the assessee's request for reduction of penalty. We find some force in this contention because for both the years, maximum penalty is imposed and there is nothing to indicate that the assessee was involved in any offences previously. Besides this it is seen that at least in respect of one truck load of rubber transported outside Kerala, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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