TMI Blog2014 (8) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal to give a complete gobye to the well laid down procedures of law as also such requirement of predeposit and decide the matter on merit. - Following decision of Commissioner of C.Ex., Chandigarh v. Smithkline Beecham Co. Health C. Limited [2003 (9) TMI 82 - SUPREME COURT OF INDIA] - Matter remanded back - Decided in favour of assessee. - TAX APPEAL NO. 156 of 2014 - - - Dated:- 14-3-2014 - MR. AKIL KURESHI AND MS JUSTICE SONIA GOKANI, JJ. Mr. Tushar P. Hemani, Advocate and Ms. Vaibhavi K. Parikh, Advocate for the Appellant Mr. Jaimin Gandhi, LD. ASST. GOVT. PLEADER for the Respondent ORDER Per Akil Kureshi, J. 1. Heard learned counsel for the parties for final disposal of the appeal on the following substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal, the Tribunal decided several issues pertaining to validity of the assessment order and allowed the appeal in part. The Tribunal passed the following order : 9. This appeal is partly allowed. The disallowance of Input tax credit is hereby confirmed and accordingly the levy of tax as well as the interest is also confirmed. So far as the levy of penalty is concerned, the matter is remanded back to the assessing officer to examine the whole issue and pass fresh order after giving an opportunity of being heard to the appellant, in light of the directions given hereinabove. 5. It is against this order that the appellant has filed this Tax Appeal. In our opinion, the Tribunal committed serious error in examining the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 been entertained unless in terms of proviso, the appellate authority for reasons recorded in writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 issue on merit by the first appellate authority, either side is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein 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 appeal on merits also. This should not have been done. 8.2 It is not the case of either side that an identical que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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