2004 (10) TMI 373

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..... dent. [Order (Oral)]. After examining the records and hearing both sides, I am of the view that the appeal itself requires to be finally disposed of. Accordingly, after dispensing with pre-deposit, I take up the appeal. It appears from the records and submissions that the original authority had imposed a penalty of Rs. 2,000/- on the appellants under Rules 9(2), 52A, 173Q and 226 of the .....

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..... . Counsel for the appellants has sought to reinforce this challenge by citing following decisions of the Tribunal :- (1) Anand Kumar Gupta v. CC, Mumbai, 2000 (120) E.L.T. 407 (T) (2) Udai Bhaskar Rao v. CCE, Kanpur, 2002 (142) E.L.T. 414 (Tri. -Chennai). 2. Ld. DR submits that it was a fit case for enhanced penalty on the assessee. However, it is fairly conceded that the enhancement .....

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..... ion under sub-section (3) of Section 35A ibid. He had no such jurisdiction inasmuch as the first proviso to the said sub-section required him to put the assessee to notice of any intention to enhance penalty. Ld. Commissioner (Appeals) did not care to comply with this mandatory legal requirement. The enhancement of penalty, therefore, has to be held to have been made without jurisdiction. The case .....

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