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TMI Blog1996 (9) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 37(6) of the Act? (ii) Whether, in the facts and circumstances of the case, particularly keeping in view the provisions of section 2(a) of the Act and the notification dated 5th of May, 1973, the order imposing the penalty by Excise and Taxation Officer is not without jurisdiction and unsustainable in law? (iii) that in view of the non-compliance with rule 27, ten days notice having not been given before imposing the penalty on 7th September, 1987, is the Tribunal right in law in sustaining the penalty; and lastly (iv) Whether, in the facts and circumstances of the case, the imposition of penalty of the maximum rate of 25 per cent is sustainable in law?" Assessee-petitioner (hereinafter referred to as "the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad of M/s. Subhash Trading Company, Delhi, was recovered from Bhim Sain, who was also travelling in the same tanker, which established that he was the representative of the Delhi firm and had gone to Hissar to pay Rs. 2,95,000 to the assessee. Letter contained details of various expenses connected with the transaction. The goods were detained and a notice was issued to the assessee under section 37(6) of the Act to show cause as to why penalty under section 37(6) of the Act be not imposed. After hearing the parties and evaluating the evidence, Excise and Taxation Officer concluded that there was an attempt to evade tax and a case for imposition of penalty was made out. Maximum penalty of twenty-five per cent provided under the Act was imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax due under the Act. The order passed by the detaining officer was a reasoned order, based on evidence. The conclusions arrived at are that of fact. Question No. (i), under these circumstances, is not a question of law and does not require to be referred to this Court for its opinion. Regarding question No. (ii), relying upon notification dated May 5, 1973, issued by the Haryana Government, in exercise of its powers under section 3 of the Act, it was argued that an Assessing Authority can levy penalty with respect to matters connected with and arising out of assessment only. "Assessing Authority" has been defined in section 2(a) of the Act and it means any person authorised by the State Government to make any assessment under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his satisfaction that there was an attempt to evade tax, to levy penalty of not less than ten per cent and not more than twenty-five per cent of the value of the goods. This sub-section has nothing to do with the framing of assessment. Argument raised is totally misconceived. Section 37(2) of the Act specifically empowers any officer of the department not below the rank of an Assistant Excise and Taxation Officer, to check the goods carrier while in transit at any place. The Excise and Taxation Officer was competent to check the goods at any place and to take action under any of the provisions of section 37 of the Act. Position in this regard is self-evident and, therefore, question No. (ii) is not a referable question of law. Regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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