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2019 (11) TMI 553 - HC - VAT and Sales TaxCompliance with the pre-deposit - adjustment of duty paid under protest during investigation - MVAT Act - whether the amount of duty (which was paid under protest) should be considered for the purpose of computing the 10% mandatory pre-deposit required for filing the appeal in accordance with the Section 26(6A) of the MVAT Act? HELD THAT:- In the present case, the appeal is against an order. That order is an order passed under section 23. If it is that order which is appealable, then, all the sub-sections of section 23 and the assessment proceedings cannot be lost sight of. If already some amounts are paid, albeit under protest, they would be adjusted against the total tax liability and the demand to follow. The order, therefore, is a composite one - In the instant case, that order, copy of which is annexed to the petition, is passed by the Deputy Commissioner of Sales Tax. He had before him the request of the petitioner and the reply to the show cause notice, wherein, he was called upon to complete the VAT/CST assessment along with the entry tax for the financial year 2013-2014. It is, therefore, clear that if the petitioner/ appellant is aggrieved by it, it is an order of assessment. At the end of the assessment, there is a tax liability. That is crystallised and a notice of demand is issued to the petitioner. When the appeal is against such a tax liability, the petitioner cannot contend that because a paltry amount was deposited under protest prior to the assessment and at the time of investigation, that be adjusted against the pre-deposit contemplated by section 26(6A) of as compliance with subsection (6A) of section 26 of the MVAT Act. If this argument of Mr. Sridharan is accepted, it would mean that a payment under protest made at the time of investigation to avoid tax liability or to escape assessment would suffice and on the strength of that, the appeal would be entertained despite there being no proof of payment of the aggregate of the amounts as set out in clauses (a) and (b) of sub-section (6A) of section 26 of the MVAT Act. While it is true that payment under protest cannot be regarded as acceptance of the tax liability, that principle has no application to the instant case. It is opined that If the amount is paid within 4 weeks from today, the Appellate Court shall entertain the Appeal and decided it on merits in accordance with law - Petition dismissed.
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