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2014 (12) TMI 697 - GUJARAT HIGH COURTValidity of order passed by Tribunal - Non compliance with pre deposit order - Whether Customs Excise and Service Tax Tribunal committed an error in allowing the assessee's appeal on merits when in such appeal the assessee had challenged the decision of the Commissioner dismissing its appeal for non-fulfillment of the predeposit requirement - Held that:- in any appeal, where the decision under challenge relates to any duty demanded instead of goods, which are not under the control of the excise authorities or is respect to any penalty levied, the appellant has the duty to deposit with the adjudicating authority such duty demanded or the penalty levied. Unless such pre-deposit requirement is waived either completely or partially either unconditional or on such condition as may be imposed such requirement would have to be fulfilled. It was, in this background, that the Commissioner, while substantially waiving the pre-deposit requirement, insisted that against a duty demand of ₹ 17.59 lacs (rounded off) with matching penalty, the appellant should either deposit a sum of ₹ 3.50 lacs or offer bank guarantee for such sum. It was because that the appellant did not fulfill this requirement that the appeal came to be dismissed by the Commissioner. Even if the Tribunal was of the opinion that the entire pre-deposit requirement was to be waived in view of a strong case of the assessee or any other such ground, the Tribunal ought and should have passed such an order placing the appellant back before the Commissioner for his consideration. In the present case, the Tribunal, instead of adopting such a route, virtually converted itself into the first appellate authority. The Tribunal is the final fact finding authority. Any further appeal against the decision of the Tribunal before the High Court would be available only on substantial question of law. When the statute provides for two layers of screening at the appellate stage, for questions of law and facts, it would even otherwise be not desirable to by pass the first appellate stage and permit the Tribunal to entertain the appeal as first appellate authority. - Matter remanded back - Decided in favour of Revenue.
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