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Judgment
R. Sudhakar, J.—Aggrieved by the order of the Tribunal in allowing the appeal filed by the assessee, the Revenue/appellant is before this Court by filing the present appeal. This Court, vide order dated 18-9-2008 admitted the appeal on the following substantial questions of law:-
"1. Whether the 2nd respondent Tribunal, while remitting the matter back, is right in law in giving a positive direction not to impose penalty on the 1st respondent, especially when the imposition of such penalty under Sections 76 and 78 of Finance Act, 1994 is not only automatic but also mandatory?
Whether the 2nd respondent is justified in law in exercising its power to remand the matter with positive directions to the original authority to pass orders in a particular way? If such power of 2nd respondent is justified would it not make the order of remand as an empty formality?"
It appears that an amount of Rs. 29,03,563/- has been paid by the assessee at the time of investigation and appropriated towards the demand. Similarly, an amount of Rs. 47,792/- was paid as interest. The Tribunal, taking note of the plea that excess amount was paid even before the issuance of show cause notice, came to pass the following order:
"3.................On this basis, according to the appellants, the total amount deposited by them prior to issuance of the show cause notice is in excess of what is due to the Revenue. The learned counsel has estimated this excess amount at Rs. 13,55,605/-, refund of which is now being claimed. These basic facts are contained in a ''worksheet'' filed by the learned counsel, a copy of which has been made available to the learned JDR. Obviously, there are discrepancies in the impugned order and the case requires to be remanded to the investigating officers. After all, arithmetical mistakes appear to have been made by the adjudicating authority also. On an overall consideration of the case, we are of the view that the appellants are not liable to be penalised in the facts and circumstances of the case.
For the aforesaid reasons, we set aside the impugned order and direct the adjudicating authority to pass fresh order (without imposing any penalty on the party) after considering the worksheet (which will be produced by the party) and giving them a reasonable opportunity of being heard. The appeal stands allowed by way of remand."
The only grievance of the Department in the present case is that while remanding the matter to the adjudicating authority, the Tribunal should have left it open to the said authority to decide the question of penalty, instead the Tribunal has remanded the matter with a pre-condition not to impose any penalty on the party.
Once the quantum, as to whether correct amount of duty has been paid and at what stage and its implication has been left to the discretion of the adjudicating authority, on remand., it is always open to the said authority to decide the question of penalty and it cannot be restricted by any direction that no penalty should be imposed. The Tribunal cannot take away the discretion of the authority to levy penalty if it is imposable according to law. Accordingly, we answer the questions of law raised in favour of the Revenue. The civil miscellaneous appeal is allowed. On remand, the assessing authority shall take a decision on its own merits, including the question of penalty. However, in the circumstances of the case, there shall be no order as to the costs.