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TMI Blog2013 (5) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... de and subject to the provisions of the Act, may pass orders thereon. An order passed under Section 37 is appealable to this Court under Section 40 of the Act also. In a proceedings under Section 45A, if the order is to be revised by the Commissioner suo motu. However, the fact a wrong provision has been quoted in Ext.P3 notice or Ext.P4 order, by itself, will not invalidate the proceedings conclude against the petitioner. In this case, the petitioner has not been able to prove before this court that any prejudice has been caused to him on account of the wrong quoting of the provision. If that be so, the fact that Section 37 has been mentioned in Ext.P3 or P4, does not result in nullification of the orders. Grounds mentioned in Ext.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent. Going by what is stated, this order has been passed in exercise of the powers under Section 37 of the KGST Act. 3. Briefly stated the case is that during the assessment year 200-2001, petitioner purchased imported timber worth Rs.36,87,710/-. According to him the whole quantity was transported from Mangalore. On 20.3.2010, the Intelligence Officer inspected the business premises of the petitioner and he did not find any stock of the timber. On this basis and also on the allegation that the quantity sold was not returned, proceedings under Section 45A of the KGST Act were initiated. Accordingly, by Ext.P1 oder penalty of Rs.11,31,180/- was levied on the petitioner. 4. Petitioner filed revision before the Deputy Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner was not technical and that Ext.P2 order of the Deputy Commissioner was highly prejudicial to the revenue and was issued without considering documentary evidence available on record. On that basis Ext.P2 order was vacated and Ext.P1 penalty order was restored. It is in these circumstances the writ petition has been filed. 6. Two contentions are raised by the learned counsel for the petitioner. First contention raised is that Ext.P3 notice proposing suo motu revision was issued invoking power under Section 37 of the KGST Act. It is contended that if a penalty order issued under Section 45A is to be revised, the power that can be invoked is under Section 45A(5) only. Therefore, according to the learned Counsel Ext.P3 order has been issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power by another authority, such revision will not be maintainable. So the revision by the Board of Revenue shall be under the same provision and in the same manner. So the revision by the Board of Revenue against an order under Section 45A(1) or by the Deputy Commissioner under Section 37 of the Act. An appeal to the High Court will be maintainable if the Board of Revenue exercises suo motu power under Section 37 or 59A of the Act. " 8. However, the fact a wrong provision has been quoted in Ext.P3 notice or Ext.P4 order, by itself, will not invalidate the proceedings conclude against the petitioner. In this case, the petitioner has not been able to prove before this court that any prejudice has been caused to him on account of the wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion no notice was given or resort to such a provision was made to the delinquent or the offending party." 10. A reading of the judgment shows that the Apex Court held that the principle that an action which is valid under one section cannot be rendered invalid because reference is made to another section, will have no application where in a penal action, where no notice was given or resort to such a provision was made to delinquent or the offending party. The facts of this case show that the aforesaid exception pointed out by the Apex Court has no relevance in so far as this case is concerned. For these reasons I am not impressed by the first contention raised by the counsel for the petitioner. 11. In so far as the 2nd contention that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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