TMI Blog2015 (2) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... ue on the four questions of law mentioned at paragraph No.5. However, in our view, only first question would arise for consideration, considering the facts and circumstances of the case. The same can be reproduced as under:- Whether the Tribunal erred in adjudicating on merits despite first Appellate Authority adjudicated only on the issue of pre-deposit? 2. We have heard Mr.Dave, learned A.G.P. appearing for the appellant and Mr.Gupta, learned counsel appearing for the respondent. 3. The short facts appear to be that the assessment was made by the Assistant Commissioner of Commercial Tax (hereinafter referred to as the A.O.) and the outstanding tax amount with penalty was assessed at ₹ 1,09,561/-. The respondent preferred appeal against the order of assessment and in the said appeal, interim application was made for stay to waive condition of pre-deposit. The first Appellate Authority vide order dated 14.05.2012, found that as there is no willingness to comply with the condition of pre-deposit, the appeal was not entertained and was dismissed. The Tribunal, in the Second Appeal, instead of examining the aspect of predeposit, has proceeded to examine the merits of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this tax appeal. We have considered the following substantial question of law: Whether the Hon'ble Tribunal was right in adjudicating the appeal on merits instead of restricting itself to the issue of predeposit? 2.It is undisputed that the appeal before the Tribunal arose out of the order passed by the first appellate authority on question of predeposit. The Tribunal, in the impugned judgement, instead of deciding such issue, considered the questions on merits and substantially allowed the assessee's appeal. In our opinion, the only scope of the appeal before the Tribunal was, whether the first appellate authority 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the process, the Tribunal jettisoned the first appeal before the Appellate Commissioner and also waived the requirement of predeposit without passing any order to that effect. If the Tribunal was of the opinion that the condition imposed by the Appellate Commissioner was too onerous to be fulfilled by the appellant and the facts of the case warranted interference, the Tribunal could 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 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 Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity of appeal on merit also gets marred by this process. Even if it is felt by the Tribunal that the issue is covered by the decision of the higher forum, it can always direct the parties to agitate these aspects before the concerned authority [first appellate authority here]. 8. We also need to take note of the fact that the intent of incorporating the provision of predeposit before proceeding with the appeal is well carved out by the decision of the Apex Court in case of Benara Valves Limited v. Commissioner of Central Excise, reported in 2006 [204] ELT 513 (SC). 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., Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with law bearing in mind the observations made above. It would be open for the appellant to amend his appeal before the Tribunal, for which he may make an application latest by February 28, 2014. It is clarified that if the appellant fails to amend the prayer clauses of his appeal before the Tribunal, the remanded appeal shall not be entertained by the Tribunal questioning the merits of the order of assessment. This appeal is disposed of accordingly. In view of the order passed in the main appeal, the connected Civil Application does not survive and the same stands disposed of accordingly. 3. Under the circumstances, the question is answered in favour of the appellate. Judgement of the Tribunal is set aside. Appeal is restored before the Tribunal for fresh consideration bearing in mind the observations made hereinabove. Tax appeal is disposed of accordingly. 11. Neither Mr.Trivedi nor Mr.Asthavadi has contended that there are any distinguishing circumstances in the present appeals. Hence, the question formulated has to be answered in negative. Consequently, the judgement of the Tribunal is set aside. The appeal is restored before the Tribunal for fresh consideration bear ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
