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2015 (5) TMI 170 - GUJARAT HIGH COURT

2015 (5) TMI 170 - GUJARAT HIGH COURT - TMI - Validity of Tribunal's order - Tribunal decided appeal on merits instead of dismissing it for non deposit of pre deposit order - Held that:- Tribunal is bound to obey the decision of the High Court. It is not open for the learned tribunal to ignore the directions, observations or orders passed by the High Court. If instead of the learned tribunal any other person would have ignored the order passed by the High Court it would tantamount to Contemp .....

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sider the following substantial questions of law; (A) Whether, in the facts and under the circumstances of the case, the Gujarat Value Added Tax Tribunal was right in law in deciding the appeal on merits when the Deputy Commissioner (Appeals) had not decided the appeal on merits but dismissing it only for non payment of pre-deposit? 2. Ms. Vaibhavi Parikh, learned advocate has appeared on behalf of the respondent-dealer and with the consent of the learned advocates appearing on behalf of the res .....

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of the order passed by the first appellate authority dismissing the appeal on non payment of the amount of pre-deposit has entered into the merits of the case and has decided the appeal before it as if the appeal before it was against the order passed by the first appellate authority on merits. 4. Ms Vaibhavi Parikh, learned advocate appearing on behalf of the respondent-dealer is not in a position to dispute the above facts. 5. Having heard the learned advocates appearing on behalf of the respe .....

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on merits but on non deposit of the amount of pre-deposit. The learned tribunal as such was required to consider the legality and validity of the order passed by the first appellate authority with respect to the amount of pre-deposit and / or dismissing the appeal on non payment of pre-deposit as directed earlier. From the impugned judgment and order passed by the learned tribunal, it appears that the learned tribunal has without even deciding the main issue in the appeal i.e. without considerin .....

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s of this Court quashing and setting aside similar orders passed by the learned tribunal by which in appeal against the order passed by the first appellate authority dismissing the appeal on non deposit of pre-deposit, the learned tribunal entered into the merits of the case and decided the appeal. 6.1 In Tax Appeal No.711/2013 in the case of State of Gujarat Vs. Tudor India Ltd. as such the Division Bench of this Court deprecated such practice of the learned tribunal in deciding the appeal on m .....

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st of deposit of pre deposit, such determination of the entire appeal by the Tribunal at the such juncture, in our opinion, is not a desirable approach. We may not choose to interfere in all such cases where the Tribunal has straightway chosen to decide the matter on merit instead of determining issue of pre deposit which was at large before it. However, so as to ensure that a dent is made in such practice followed consistently that we have chosen to remand this matter. Once, when assessee choos .....

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t only the parties and the second appellate authority would be deprived of the reasonings of the first appellate authority but chance of either sides of availing the opportunity 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 th .....

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recting or not directing the amount of pre deposit. 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 pre deposit 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. Thi .....

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as required or not. The Tribunal has chosen to go into the merits and decided the appeal on merits also. This should not have been done." 8.2 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 different assessment year was before the Tribunal, and in such circumstances, with the consent of the parties it chose to conclude on merit. .....

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g 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 deposit so also on the question of merit." 6.2 Even subsequently also in number of cases different Division Benches had set aside the similar orders passed by the learned tribunal and remanded the matter to the learned tribunal to consider the issue or the .....

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