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TMI Blog2015 (5) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... enue. - Tax Appeal No. 1371 of 2014 - - - Dated:- 19-3-2015 - M. R. Shah And S. H. Vora,JJ. For the Petitioner : Mr Tushar P Hemani, Adv. Ms Vaibhavi K Parikh, Adv. For the Respondent : Mr Chintan Dave, AGP ORDER (Per : Honourable Mr. Justice M. R. Shah) 1. The present Tax Appeal is ADMITTED to consider the following substantial questions of law; (A) Whether, in the facts and under the circumstances of the case, the Gujarat Value Added Tax Tribunal was right in law in deciding the appeal on merits when the Deputy Commissioner (Appeals) had not decided the appeal on merits but dismissing it only for non payment of pre-deposit? 2. Ms. Vaibhavi Parikh, learned advocate has appeared on behalf of the respondent-d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trated only on the order passed by the first appellate authority dismissing the appeal not on merits but on non deposit of the amount of pre-deposit. The learned tribunal as such was required to consider the legality and validity of the order passed by the first appellate authority with respect to the amount of pre-deposit and / or dismissing the appeal on non payment of pre-deposit as directed earlier. From the impugned judgment and order passed by the learned tribunal, it appears that the learned tribunal has without even deciding the main issue in the appeal i.e. without considering the legality and validity of the order passed by the first appellate authority either with respect to pre-deposit and / or dismissing the appeal on non depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pre deposit 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 pre deposit or contest the matter on the ground of pre-deposit 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 pre deposit was not made. The Commissioner [Appeals] had not gone into the merits. Therefore, the only question before the Tribunal was whether pre deposit was required or not. The Tribunal has chosen to go into the merits and decided the appeal on merits also. This should not have been done. 8.2 It is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not reached the learned tribunal and the learned tribunal has continued to pass similar and such orders ignoring the decision of the High Court. The learned tribunal is bound to obey the decision of the High Court. It is not open for the learned tribunal to ignore the directions, observations or orders passed by the High Court. If instead of the learned tribunal any other person would have ignored the order passed by the High Court it would tantamount to Contempt of Court. However, we refrain ourselves from making any observations and we rest the matter there with a hope that in future the learned tribunal will absolutely follow the decision of this Court, more particularly, in Tax Appeal No.711/2013 and other subsequent decisions. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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