TMI Blog2015 (2) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... l Application (OJ) No. 689 of 2014, Tax Appeal No. 1331 of 2014, Tax Appeal No. 1355 of 2014 - - - Dated:- 12-1-2015 - Jayant Patel And S. H. Vora,JJ. For the Appellant : Mr Pranav Trivedi, AGP For the Respondent : Mr A S Asthavadi, Adv JUDGMENT (Per : Honourable Mr. Justice Jayant Patel) 1. It appears that in the present matters, the question formulated at the time of admission, was as under:- Whether Tribunal erred in deleting levy of interest merely because Assessee had excess input credit adjustable against tax demand? 2. Considering the facts and circumstances of the present appeal and, more particularly, in view of the order passed by this Court dated 09.01.2015 in Tax Appeal No.1355 of 2014, we find that the present appeal need not to be heard with Tax Appeal No.1321 of 2014 since in Tax Appeal No.1321 of 2014, the question of remand of matter to the Tribunal may not arise as it may arise in the present matter for the reasons recorded hereinafter. Hence, the present appeals are detached from Tax Appeal No.1321 of 2014. 3. In Tax Appeal No.1331 of 2014, after hearing Mr.Trivedi, learned A.G.P. and Mr.Asthavadi, learned counsel, who is appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 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 the Tribunal. In our judgement passed in Tax Appeal No. 688 of 2013, we had recorded as under: 3. We are of the opinion that the Tribunal committed serious error in examining the appellants grievances on the merits of the order of assessment. The order of assessment was passed by the adjudicating authority, which was appellable by way of first appeal before the Appellate Commissioner. Section 73(4) of the Gujarat Value Added Tax Act, 2003, requires that no appeal against the order of assessment shall ordinarily be entertained by the Appellate Commissioner, unless such appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Assessing Officer. There was no prayer for setting aside the appellate order of imposing condition and subsequently, dismissing his appeal when he failed to fulfill such condition. Even if it were so, the Tribunal could have either permitted the appellant to suitably amend the prayer or if the appellant was not willing to do so, dismiss his appeal as not maintainable. In our opinion, the Tribunal could not have bypassed the first appellate authority and statutory requirement of predeposit, unless it was waived by an order in writing. 6. We are at pains to record our findings sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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., Chandigarh v. Smithkline Beecham Co. 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 predeposit was not made. The Commissioner [Appeals] had not gone into the merits. Therefore, the only question be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isposed 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. 8. The aforesaid shows that approach on the part of the Tribunal to examine the merits of appeal instead of addressing itself to the aspects of condition of predeposit and entertainment of the appeal by the first Appellate Authority was not countenance and this Court had found that it was required for the Tribunal to address itself first on the aspect of condition of predeposit and thereafter, appropriate order could be passed on the aspects of remand or otherwise to the first Appellate Authority. Learned counsel appearing for the Revenue as well as for the Assessee have not shown any distinguishing circumstances in present appeals. 9. Under the circumstances, the question formulated has to be answered in negative. Hence, answered accordingly. Consequently, the judgment of the Tribunal is set aside. The appeal is restored before the Tribunal for fresh consideration bearing in mi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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