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TMI Blog2015 (1) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants grievances on the merits of the order of assessment – the Tribunal could not have bypassed the FAA and statutory requirement of pre-deposit, unless it was waived by an order in writing – thus, the order passed by the Gujarat Value Added Tax Tribunal is set aside – the matter is remitted back to the Tribunal for fresh consideration and disposal in accordance with law – Decided in favour of petitioner revenue. - TAX APPEAL NO. 1329 of 2014 With CIVIL APPLICATION (OJ) NO. 688 of 2014 - - - Dated:- 9-12-2014 - MR. AKIL KURESHI AND MR. VIPUL M. PANCHOLI, JJ. FOR THE APPELLANT : MR JAIMIN GANDHI, AGP FOR THE RESPONDENT UCHIT N SHETH, ADVOCATE JUDGEMENT Per: Akil Kureshi: 1. Heard learned counsels for final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal against the order of assessment shall ordinarily be entertained by the Appellate Commissioner, unless such appeal is accompanied by proof of payment of tax in respect of which the appeal has been preferred. Proviso to section 73(4), however, provides that the appellate authority may, if it thinks fit, for reasons to be recorded in writing, entertain an appeal against such order (a) without payment of tax, interest, if any or as the case may be, of the penalty, or (b) on proof of payment of such small sum as it may consider necessary or (c) on the appellant furnishing in the prescribed manner security or such as the appellate authority may direct. 4. In view of section 73(4) of the Act, therefore, such appeal could not have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 predeposit 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 predeposit 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, in our opinion, is not a desirable approach. We may not choose to interfere in all such cases where the Tribunal has straightway chosen to decide the matter on merit instead of determining issue of predeposit 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commissioner of C.Ex., Chandigarh v. Smithkline Beecham Co. Health C. Limited., reported in 2003 [157] ELT 497 (SC), wherein it is observed, thus 2. This appeal is filed against an order passed by the Customs, Excise Gold [Control] Appellate Tribunal dated 19th December 2002. The Tribunal was hearing an appeal against an order dated 23rd April 2002 passed by the Commissioner of Central Excise [Appeals]. By that order, the Commissioner [Appeals] had merely dismissed the appeal because predeposit was not made. The Commissioner [Appeals] had not gone into the merits. Therefore, the only question before the Tribunal was whether predeposit was required or not. The Tribunal has chosen to go into the merits and decided the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the circumstances, the order dated April 29, 2013 passed by the Gujarat Value Added Tax Appellate Tribunal at Ahmedabad is quashed. The appeal be placed back before the Tribunal for fresh consideration and disposal in accordance with law bearing in mind the observations made above. It would be open for the appellant to amend his appeal before the Tribunal, for which he may make an application latest by February 28, 2014. It is clarified that if the appellant fails to amend the prayer clauses of his appeal before the Tribunal, the remanded appeal shall not be entertained by the Tribunal questioning the merits of the order of assessment. This appeal is disposed of accordingly. In view of the order passed in the main appeal, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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