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TMI Blog2014 (4) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... on and subsequently, dismissing his appeal when he failed to fulfill such condition. His prayers pertained only to the issues on merits about the additions made by the Assessing Officer. There was no prayer for setting aside the appellate order of imposing condition and subsequently, dismissing his appeal when he failed to fulfill such condition. Even if it were so, the Tribunal could have either permitted the appellant to suitably amend the prayer or if the appellant was not willing to do so, dismiss his appeal as not maintainable. In our opinion, the Tribunal could not have bypassed the first appellate authority and statutory requirement of predeposit, unless it was waived by an order in writing. Intention of provision of pre-deposit – Held that:- Judgment in Benara Valves Limited v. Commissioner of Central Excise [2006 (11) TMI 6 - SUPREME COURT OF INDIA] followed - If either side approaches the Tribunal, it is open for the Tribunal to take into consideration the law on the subject and decide the validity of the order of directing or not directing the amount of predeposit - However, that would not ipso facto entitle the Tribunal to give a complete go bye to the well laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal, thus, was whether the Joint Commissioner of Commercial Tax was justified in insisting that the appellant should deposit 100% of the amount by way of predeposit. In the process of hearing the appeal, the Tribunal decided several issues pertaining to validity of the assessment order and allowed the appeal in part. The Tribunal passed the following order : 9. This appeal is partly allowed. Disallowance of Input tax credit is hereby confirmed and accordingly the levy of tax as well as the interest is also confirmed. So far as the levy of penalty is concerned, the matter is remanded back to the assessing officer to examine the whole issue and pass fresh order after giving an opportunity of being heard to the appellant, in light of the directions given hereinabove. If the learned assessing officer comes to the conclusion that the penalty is leviable, he will also look into the grievances raised by the appellant with regard to the calculation of the amount of penalty. 5. It is against this order that the appellant has filed this Tax Appeal. In our opinion, the Tribunal committed serious error in examining the validity of the assessment order in an appeal concerning the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fulfill such requirement, his appeal came to be dismissed. It was against this order that the appellant had preferred appeal before the Tribunal. The scope of the appeal before the Tribunal, therefore, had to be limited to the question of finding out whether the order passed by the Commissioner insisting on the appellant depositing certain amount by way of predeposit was valid or not and resultantly, his decision to reject such an appeal for noncompliance with such requirement was correct or not. 5. Unless and until the answers were given to such questions, the appellant s first appeal before the appellate authority was simply not maintainable and could not have been entertained. If that be so, the Tribunal could not have entered into merits and in the appeal before itself and given a judgment on the validity of the order of assessment. In the process, the Tribunal jettisoned the first appeal before the Appellate Commissioner and also waived the requirement of predeposit without passing any order to that effect. If the Tribunal was of the opinion that the condition imposed by the Appellate Commissioner was too onerous to be fulfilled by the appellant and the facts of the case wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit which was at large before it. However, so as to ensure that a dent is made in such practice followed consistently that we have chosen to remand this matter. Once, when assessee chooses not to comply with the requirement of making predeposit or contest the matter on the ground of predeposit and either side approaches the second appellate authority, there does not arise any question of circumventing the very stage and exercise the powers of first appellate authority. We say so as the Statute provides that even on adjudication of the issue on merit by the first appellate authority, either side is entitled to challenge such reasonings before the second appellate authority. Not only the parties and the second appellate authority would be deprived of the reasonings of the first appellate authority but chance of either sides of availing the opportunity of appeal on merit also gets marred by this process. Even if it is felt by the Tribunal that the issue is covered by the decision of the higher forum, it can always direct the parties to agitate these aspects before the concerned authority [first appellate authority here]. 8. We also need to take note of the fact that the intent of i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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