TMI Blog2015 (4) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to be noted that First Appellate Authority did not decide the appeal on merits and the First Appellate Authority did not go into the legality and validity of the adjudication order. Under the circumstances, as such appeal before the learned Tribunal was confined to the question whether condition of pre deposit of ₹ 3,60,000/- imposed by the First Appellate Authority was legal or not. In such appeal, as such, learned Tribunal could not have entertained question of legality of the adjudication order. From the impugned judgment and order passed by the learned Tribunal, it appears that the learned Tribunal has decided the appeal as if it was hearing the appeal against the judgment and order passed by the learned First Appellate Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjusted against the available tax credit of ₹ 13,56,743/- and rest of tax credit of ₹ 5,65,097/- is to be carried forward to the next period and interest and penalty are also removed, the appellant - State of Gujarat has preferred present Tax Appeal. 3.0. That the respondentdealer was assessed under Section 34 of the VAT Act, but the reduction of input tax credit @ 4% under Section 11(3)(b)(ii) of the VAT Act was not done. Therefore, the Assessing Authority reassessed the dealer and reduced the tax credit to the tune of ₹ 7,91,646/- from the opening balance of the tax credit. The assessing authority also levied interest of ₹ 3,47,847/- and penalty of ₹ 15,83,292/- @ 200% under Section 12(7) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Authority but the learned Tribunal has also modified the order of assessment for the year 2006-07 dated 23.5.2011 and has directed that the amount of tax dues of ₹ 7,91,646/- be adjusted against the available tax credit of ₹ 13,56,743/- and rest of tax credit of ₹ 5,65,097/- is to be carried forward to the next period and interest and penalty are also removed. 3.3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Tribunal, the appellantState of Gujaratthrough Commissioner of Commercial Tax has preferred present Tax Appeal. 4.0. Shri Gandhi, learned Assistant Government Pleader appearing on behalf of appellant has vehemently submitted that the learned Tribunal has materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Tribunal to decide the appeal on merits and to consider the legality and validity of the order passed by the First Appellate Authority dismissing the same on non compliance of the order of pre deposit of ₹ 3,60,000/-, we do not propose to enter into merits of the case and therefore, we have not permitted Shri Gandhi, learned AGP to submit the case on merits. 4.2. Shri Gandhi, learned AGP has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Chandigarh vs. Smithkline Beecham Co. Holding Limited reported in 2003 (157) ELT 497 (SC) as well as decision of this Court dated 12.09.2013 in Tax Appeal No.667 of 2013 and other allied appeals in support of his prayer to qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity and validity of the adjudication order. It is required to be noted that as such the appeal before the learned Tribunal was against the order passed by the First Appellate Authority dismissing the appeal on non deposit of ₹ 3,60,000/- as pre deposit i.e. on non compliance of the order of pre deposit. It is required to be noted that First Appellate Authority did not decide the appeal on merits and the First Appellate Authority did not go into the legality and validity of the adjudication order. Under the circumstances, as such appeal before the learned Tribunal was confined to the question whether condition of pre deposit of ₹ 3,60,000/- imposed by the First Appellate Authority was legal or not. In such appeal, as such, learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quashed and set aside and the matter is remitted back to the learned Tribunal to decide the said appeal afresh in accordance with law, however such appeal shall be confined to question whether condition of pre deposit of ₹ 3,60,000/- imposed by the First Appellate Authority was legal or not and whether the learned First Appellate Authority was justified in rejecting the appeal on non deposit of amount of pre deposit. The aforesaid exercise shall be completed within a period of three months from the date of receipt of present order by the learned Tribunal. Present appeal is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. 8.0. In view of disposal of the Tax Appeal, no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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