TMI Blog2015 (4) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant is not desirous to make payment of pre-deposit and the request of waiver since was not acceptable - nothing has been stated on merits by the Joint Commissioner of Commercial Tax. What all he did is the rejection of the request made for waiver of pre-deposit by the opponent herein without touching anywhere the merits of the case. That being the case, when such order came to be challenged before the Tribunal, the Tribunal instead of addressing the issue of pre-deposit, has chosen to decide the matter on merits. - It is not the case of either side that an identical question of law was pending before the Tribunal in some other appeals concerning the very assessee, or identical question of law in respect of very assessee for differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2 On 18th February 2005, the officers of the Sales Tax Department carried out a search at the business premises of the opponent and consequently, a show cause notice came to be issued with regard to certain transactions claimed as branch transfers . As the assessment order for assessment year 20002001 was already passed, reassessment notice under section 9 (2) of the Central Sales Tax Act, 1956 { Central Act for short} read with section 44 of the Act came to be issued. 2.3 On 26th June 2008, the Deputy Commissioner of Commercial Tax, Gandhinagar passed reassessment order whereby all branch transfers were treated as interstate trade or commerce and dues were determined accordingly. 2.4 The opponent, since was aggrieved by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appeal deserves to be admitted in as much as the Tribunal has committed a gross error in not appreciating that the transfers being the branch transfers as, even if the same was accepted in the original assessment, in reassessment proceedings, the Deputy Commissioner of Commercial Tax has held in favour of the State. 4. A plea however was taken that the Joint Commissioner of Commercial Tax in the first appeal order made on 4th August 2008 rejected the appeal of the appellant on the ground of non-payment of 20% of the total demand and when this rejection made on the ground of nonpayment was challenged before the Tribunal, it could not have decided the matter on merit; ignoring the aspect of pre-deposit. 5. Per contra, learned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue concerns branch transfer of the transactions. The Joint Commissioner of Commercial Tax also, in the impugned order, noted that the appellant is not desirous to make payment of pre-deposit and the request of waiver since was not acceptable, the appeal of the assessee was dismissed. 6.3 As could be noticed from this order, nothing has been stated on merits by the Joint Commissioner of Commercial Tax. What all he did is the rejection of the request made for waiver of pre-deposit by the opponent herein without touching anywhere the merits of the case. That being the case, when such order came to be challenged before the Tribunal, the Tribunal instead of addressing the issue of pre-deposit, has chosen to decide the matter on merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pre-deposit 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 pre-deposit, it is open for the Tribunal to take into consideration the law on the subject and decide the validity of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.3 In view of the discussion held hereinabove, we therefore are of the opinion that this appeal deserves to be remanded back to the Tribunal so as to emphasis the requirement of not permitting any such short circuiting of the process at any stage. We have chosen not to enter the arena of merit of the case at all as is apparent from the discussion held hereinabove. 8.4 With this, the present appeal is directed to be remitted back to the Tribunal to decide the issue of pre-deposit and on deciding the same to the first appellate authority which shall decide the same on merit in accordance with law. Needless to say that the law on the subject shall govern the decisions of these authorities, while deciding both the issues ie., pre-depos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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