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TMI Blog2015 (2) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... VADI, ADVOCATE FOR THE RESPONDENT : MR PRANAV TRIVEDI, AGP JUDGEMENT Per: Jayant Patel: 1. As both the appeals arise from the very order passed by the Tribunal in the appeal before it being Second Appeal No.594 of 2012, both the appeals are considered simultaneously. 2. We may record that in Tax Appeal No.1323 of 2014, this Court had passed the following order on 5.12.2014:- Learned advocate pointed out that the appeal before the Tribunal arose out of order passed by the first appellate authority on the issue of predeposit. The Tribunal instead of deciding such issue, proceeded to hear the appeal on merits. Notice of final disposal returnable on 9.1.2015. 3. Mr.Asthavadi, learned Counsel appears for the respondent, who is appellant in Tax Appeal No.1353 of 2014. 4. Tax Appeal No.1353 of 2014 has been listed for the first time. 5. Hence, Notice for final disposal is issued and Mr.Pranav Trivedi, learned AGP, who is appearing for the appellant - State of Gujarat in cross appeal being Tax Appeal No.1323 of 2014, has waived service of notice. 6. In both these appeals, substantial question of law can be formulated as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority had committed an error in insisting on a certain predeposit being made by the assessee in order to pursue the appeal on merits? In the process, the Tribunal could have either confirmed, set aside or modified such order on the condition of pre deposit. Tribunal could not have allowed the assessee's appeal on merit since the assessee's first appeal before the authority was not maintainable without either making full predeposit or complying with the condition of part predeposit as may be imposed by the appellate authority and if so, modified by the Tribunal. In our judgement passed in Tax Appeal No. 688 of 2013, we had recorded as under: 3. We are of the opinion that the Tribunal committed serious error in examining the appellants grievances on the merits of the order of assessment. The order of assessment was passed by the adjudicating authority, which was appellable by way of first appeal before the Appellate Commissioner. Section 73(4) of the Gujarat Value Added Tax Act, 2003, requires that no appeal against the order of assessment shall ordinarily be entertained by the Appellate Commissioner, unless such appeal is accompanied by proof of payment of tax i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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. 6. We are at pains to record our findings since we find that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C). 8.1. If either side approaches the Tribunal, being aggrieved by the order of either grant or rejection of requirement of predeposit, 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 down procedures of law as also such requirement of predeposit 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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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