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TMI Blog2010 (12) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... RSHA DEVANI J. Rule. Ms. Maithili Mehta, learned Assistant Government Pleader, waives service of rule on behalf of the respondents. Having regard to the controversy involved in the present case, which lies in a very narrow compass, the matter is taken up for final hearing today. The petitioner is a dealer engaged in the business of manufacture and sale/ purchase of various types of textile products. The petitioner made an application dated July 7, 2006 under section 80(1)(e) of the Gujarat Value Added Tax Act, 2003 (the Act) to the Joint Commissioner of Commercial Tax (Legal), Gujarat for determination of availability of credit of value added tax paid at the rate of four per cent on purchase of raw material within the State of Gujarat. The said application came to be decided vide order dated November 30, 2006 holding that as per the provisions of section 11(3)(b)(i), four per cent would be deducted from the tax credit available to the petitioner and the remaining amount would be admissible as tax credit. No finding was given in relation to inapplicability of section 11(3)(a)(i) of the Act. Being aggrieved, the petitioner preferred an appeal before the Tribunal under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-section (4) of section 73 of the Act, it was pointed out that under the Gujarat Value Added Tax Act, the Tribunal may, if it thinks fit, for reasons to be recorded in writing, entertain an appeal against the orders enumerated in the earlier provisions without payment of tax with penalty (if any) or, as the case may be, of the penalty, or on proof of payment of such smaller sum as it may consider reasonable or on the appellant furnishing in the prescribed manner security of such amount as the appellate authority may direct. Referring to the provisions of section 35F of the Central Excise Act, 1944, it was pointed out that under the proviso thereto, the Tribunal is empowered to dispense with depositing the duty demanded or the penalty levied provided that the Tribunal is of the opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person subject to such conditions as it may deem fit to impose so as to safeguard the interests of the Revenue. It was submitted that the decision of the apex court in the case of Benara Valves Ltd. [2009] 20 VST 297 (SC); [2007] 8 RC 6; [2006] 13 SCC 347 on which reliance has been placed upon by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the affidavit-in-reply dated December 21, 2010 made on behalf of respondent No. 1. It was submitted that the Tribunal has passed the interim order after appreciating the relevant provisions of law and the documentary evidence on record and as such, no case is made out so as to warrant intervention by this court. As can be seen from the impugned order of the Tribunal, in the earlier paragraph, the Tribunal has considered the merits of the case and in paragraph 20.4, the Tribunal has considered the legal submissions and has found that the petitioner had raised a substantial question of law and has accordingly admitted the appeal. In paragraph 20.5, the Tribunal has referred to the judgment of the Supreme Court in the case of Benara Valves Ltd. [2009] 20 VST 297 (SC); [2007] 8 RC 6; [2006] 13 SCC 347 and has discussed the issue of undue hardship and has considered the expressions undue hardship to such person and to safeguard the interests of the Revenue . The Tribunal has in paragraphs 20.5 to 20.10 reproduced paragraphs 11 to 15 of the said decision. In paragraph 21 of the order, the Tribunal has recorded that the petitioner had filed affidavit showing that it is facing fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax with penalty (if any) or, as the case may be, of the penalty, or (b) on proof of payment of such smaller sum as it may consider reasonable, or (c) on the appellant furnishing in the prescribed manner, security of such amount as the appellate authority may direct. Thus, there is a vast difference between the language employed in section 35F of the Central Excise Act and section 73 of the Gujarat Value Added Tax Act. The Gujarat Value Added Tax Act nowhere provides that the Tribunal shall consider the question of waiver of the amount of pre-deposit only in case where undue hardship is made out and in such manner so as to protect the interests of the Revenue. The said provision merely provides that the Appellate Tribunal may, if it thinks fit, for reasons to be recorded in writing, pass such order dispensing with payment of tax with penalty. Therefore, when the provisions are worded differently, the Tribunal was not justified in drawing an analogy from the provisions of section 35F of the Central Excise Act while considering the question of waiver of pre-deposit under the Value Added Tax Act. On behalf of the respondents, it has been contended that the Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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