- (1.) The challenge in the present appeal is to an order passed by learned Value Added Tax Tribunal dated March 28, 2011 whereby an order passed by the Deputy Excise and Taxation Commissioner-cum-Designated Appellate Authority, Jalandhar dated November 19, 2010 was set aside with the liberty to the appellant to raise the contentions as noted before the Tribunal including as to whether penalty was required to be imposed under sections 51(7)(b) or 51(4) of the Punjab Value Added Tax Act 2005, (for short, "the Act"). The learned counsel for the appellant vehemently argued that there is no finding recorded by any of the authority that three was any attempt to evade tax or that any tax was payable. Therefore, the question of penalty will arise only when a finding is recorded that the appellant has attempted to evade tax. In fact, there is no involvement of tax and/or evasion to tax. Consequently, the question of imposition of penalty does not arise. In the absence of such finding, the question of penalty, either under section 51(7) or section 51(4) of the Act, does not arise for consideration, therefore the finding recorded is unjustified.
(2.) The learned counsel for the appellant relies upon a Supreme Court judgment reported as Tata Iron and Steel Co. Ltd v. State of Jharkhand, 2004 137 STC 93wherein the remand to the authority who has decided the issue conclusively was not favoured. It is thus contended that since the Deputy Excise and Taxation Commissioner has decided the appeal on merits, it will not be fair to remand the matter for decision afresh.
(3.) We have heard learned counsel for the appellant and do not find any merit in the arguments raised. The Assistant Excise and Taxation Commissioner has imposed the penalty holding that the documents produced by the appellant are not genuine. After returning such finding, penalty was imposed under section 51(7)(b) of the Act. In appeal, learned Deputy Excise and Taxation Commissioner held that the appellant had sent the goods out of Punjab with improper documents and that the penalty imposed is justified under section 51(4) of the Act.;