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TMI Blog2014 (8) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 pre-deposit. However, that would not ipso facto entitle the tribunal to give a complete go bye to the well laid down procedures of law as also such requirement of pre-deposit and decide the matter on merit - Resultantly, impugned order dated 11.9.2013 passed by the Gujarat Value Added Tax Tribunal is quashed. Appeal is placed back before the tribunal for fresh consideration and disposal on the issue of pre-deposit - Decided in favour of assessee. - TAX APPEAL NO. 78 of 2014 With CIVIL APPLICATION NO. 63 of 2014 - - - Dated:- 21-3-2014 - MR. AKIL KURESHI AND MS SONIA GOKANI, JJ. Mr. Manish K. Kaji, Advocate for the Appellant Mr. Jaimin Gandhi, AGP for the Respondent ORDER Ms. Sonia Gokani, J.- 1. Present Tax Appeal is preferred against the order of the Gujarat Value Added Tax Tribunal ( the Tribunal for short) dated 11.9.2013. 2. The appellant was carrying on business of trading in aluminum, iron and steel items and scrap thereof. The appellant had worked out output tax on sales made within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d pre-deposit for sum of ₹ 10 lakh. Such order was challenged before the Tribunal by the present appellant. The Tribunal though had directed the appellant to pay 20% of the tax amount making such sum to be ₹ 1.79 lakhs (rounded off) and the same was directed to be paid within a period of 30 days, however, curiously thereafter, without any request from either sides and also without reasonings, the Tribunal also directed the registry to place concerned matter along with the hearing of other group and disposed of the matter on merits. Tribunal thus has chosen to by pass the first appellate authority as is noticed in many other matters. Therefore, we are of the firm opinion that directions for rehearing on the aspect of pre-deposit in the instant case,' shall need to be given, following the decision of this Court in case of Anil Kumar v. State of Gujarat passed in Tax Appeal No.688/2013 vide order dated 30.01.2014. It would be profitable to reproduce some of the relevant observations while remanding this case to the Tribunal for the aforesaid purpose of deciding the issue of pre-deposit : 3 We are of the opinion that the Tribunal committed serious erro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 warranted interference, the Tribunal could as well have done it. In such a scenario, the Tribunal ought to have placed appeal back to the Appellate Commissioner, on such condition that the Tribunal thought fit to impose on the appellant. In the present case, without expressing any opinion on the Appellate Commissioner imposing the condition of part pre-deposit on the appellant, the Tribunal accepted the appellant's Second Appeal as if there was no Intermediary stage of the appeal before the Appellate Commissioner or any requirement of pre-deposit. under section 73(4) of the Act. We cannot lose sight of the fact that the appellant himself also substantially contributed to this complication. In the appeal, his main grounds were against the assessment order. 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 ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 incorporating the provision of pre-deposit before proceeding with the appeal is well carved out by the decision of the Apex Court in case of Benara Valves Ltd. v. Commissioner of Central Excise, reported in 2006 [204] ELT 513. 8.1 If either side approaches the Tribunal, being aggrieved by the order of either grant or rejection of requirement of pre-deposit, 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 pre-deposit. However, that would not ipso facto entitle the tribunal to give a complete go bye to the well laid down procedures of law as also such requirement of pre-deposit and decide the matter on merit. We are also backed in our conclusion by another decision of the Apex Court rendered in case of Commissioner of C.Ex., Chandigarh v. Smithkline Beecham Co. Health C. Limited., reported in 2003 [157] ELT 497, wherein it is observed, thus - 2. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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