TMI Blog2015 (5) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... osed of by this common judgment and order. 2.0. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Tribunal dated 9.4.2013 passed in Second Appeal No. 319 of 2012, by which, the learned Tribunal has allowed the said appeal and has set aside the order passed by the authority below passed on the show cause notice issued by the officials of the Excise Department and consequently has set aside the demand raised as a result thereof by entering into the merits of the case though the appeal before the learned Tribunal was against the order passed by the First Appellate Authority dismissing the appeal not on merits but on non deposit of amount of predeposit, the State has preferred present Tax Appeal No. 148 of 2015 to consider the following questions of law and mainly to consider the substantial question of law that whether the learned Tribunal has erred in deciding the appeal on merits despite the fact that First Appellate Authority dismissed the appeal for failure to deposit the predeposit. 1.Whether the Hon'ble Tribunal has erred in deciding the appeal on merits despite the fact that the first appellate authority dismissed the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid appeal and has set aside the order passed by the authority below passed on the show cause notice issued by the officials of the Excise Department and consequently has set aside the demand raised as a result thereof by entering into the merits of the case though the appeal before the learned Tribunal was against the order passed by the First Appellate Authority dismissing the appeal not on merits but on non deposit of amount of predeposit, the State has preferred present Tax Appeal No. 150 of 2015 to consider the following questions of law and mainly to consider the substantial question of law that whether the learned Tribunal has erred in deciding the appeal on merits despite the fact that First Appellate Authority dismissed the appeal for failure to deposit the predeposit. 1.Whether the Hon'ble Tribunal has erred in deciding the appeal on merits despite the fact that the first appellate authority dismissed the appeal for failure to deposit the predeposit ? 2.Whether the Hon'ble Tribunal erred in holding that the assessment orders are without application of mind and without appreciating investigating the evidence? 3.Whether the Hon'ble Tribunal erred in qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or any appeal pending before the learned Tribunal with respect to the dealer for earlier years, in which similar / identical issue arise in the subsequent years. 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 appeals i.e. without considering the legality and validity of the order passed by the first appellate authority either with respect to predeposit and / or dismissing the appeals on non deposit of predeposit, has entered into the merits of the case and has decided the appeal before it as if the appeals were against the decision of the first appellate authority on merits. The aforesaid is absolutely impermissible. 7. The learned advocates appearing on behalf of the respective parties have brought to our notice number of decisions 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 predeposit, the learned tribunal entered into the merits of the case and decided the appeal. 7.1 In Tax Appeal No.711/2013 in the case of ..... 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 pre deposit, 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 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. 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 pre deposit was not made. The Commissioner [Appeals] had not gone into the merits. Therefore, the only qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l No.711/2013 and other subsequent decisions. 8. In view of the above and for the reasons stated in the judgment and order passed by the Division Bench of this Court in the case of State of Gujarat Vs. Tudor India Ltd. in Tax Appeal No.711/2013, without further entering into the merits of the case and / or expressing anything on merits in favour of either parties, we quash and set aside the impugned judgment and orders passed by the learned tribunallearned Value Added Tax Tribunal, Ahmedabad dated 9.4.2013 and 9.5.2013 in Second Appeal Nos.319 of 2012, 321 of 2012 and 322 of 2012 respectively and remit the matters back to the learned tribunal with a direction to the learned tribunal to decide the appeals as if the appeals preferred before it is against the order passed by the first appellate authority dismissing the appeals on the ground of non deposit of the predeposit and / or with respect to the order of predeposit and the learned tribunal to consider the legality and validity of the order passed by the first appellate authority of predeposit and / or dismissing the appeals on the ground of non deposit of predeposit only. 9. The present Tax Appeals are allowed to the afore ..... 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