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TMI Blog1990 (11) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... ort question arises for decision in this revision petition. Penalty proceedings were initiated against the assessee under section 16(1)(c) of the Rajasthan Sales Tax Act, 1954. The assessing authority imposed the penalty which order was upheld in appeal by the Deputy Commissioner (Appeals). The assessee went in revision before the Board of Revenue and contended that the order of imposition of penalty was earlier annulled or set aside by the Deputy Commissioner (Appeals) and a further direction was given that the amount of penalty be refunded to the assessee, and that order was passed on 21st June, 1971. According to the assessee that order became final and it was no longer open to the assessing authority to initiate fresh proceedings after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision of the Andhra Pradesh High Court in Thimmasamudram Tobacco Co. v. Asst. Collector of Central Excise AIR 1961 AP 324. In the Supreme Court decision the order of the Assistant Collector, Excise, was vacated by the Appellate Collector on the ground of nonobservance of principles of natural justice and the order was passed without prejudice and consequential order of refund of excise duty was not passed. Their Lordships of the Supreme Court observed that on a careful consideration of the facts and circumstances of the present case where an order passed in appeal vacates the order of the first Tribunal on purely technical grounds and expressly states that it was being passed without prejudice which means an order not on the merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from the direction given by the appellate authority for refund of the amount of penalty recovered from the assessee. A clear direction was given in this regard while setting aside the order of imposition of penalty. It is true that the decision was not given on merits. The decision was rendered on account of non-observance of procedural provisions regarding issue of notice for imposition of penalty. If the appellate authority would have intended that fresh proceedings are to be initiated, in my opinion, the appellate authority would not have directed the refund of the amount of penalty; such a direction shows the clear mind and intention of the appellate authority. If the appellate authority had intended that fresh proceedings are to be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal by the appellate authority can be read in clauses (a) and (b) of sub-section (3) of section 13. Sub-clause (i) of clause (a) confers power of confirmation, reduction, enhancement or annulment of assessment or penalty and sub-clause (ii) of clause (a) confers the power of setting aside the assessment or penalty and further directing the assessing authority to pass a fresh order after such further inquiry as may be directed. Clause (b) of sub-section (3) deals with the orders other than the order of assessment and penalty and in relation to such orders power of confirmation, cancellation and variation vests in the appellate authority. According to Mr. N.M. Ranka, no direction for passing a fresh order was made by the appellate au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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