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2015 (5) TMI 172 - GUJARAT HIGH COURT

2015 (5) TMI 172 - GUJARAT HIGH COURT - [2015] 83 VST 214 (Guj) - 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 tanta .....

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H (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. As common question of law and facts arise in this group of appeals, they are disposed 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 of .....

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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 i .....

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Tribunal dated 9.5.2013 passed in Second Appeal No. 322 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 appe .....

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at 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 quashing the reassessment order instead of remanding the assessment back to the file of the assessing officer? 4.Whether the Hon'ble Tribunal erred in deleting the interest? 2.2. Feeling aggriev .....

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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&# .....

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the Hon'ble Tribunal erred in deleting the levy of penalty under Section 34(12)? 5.Whether the Hon'ble Tribunal erred in deleting the interest? 3.0. Heard Ms. Vacha Desai, learned AGP appearing on behalf of the appellant State and Shri Devan Parikh, learned Senior Advocate appearing with Shri Shail S Shah, learned advocate for the respective opponentsdealerassessee. 4.0. The main grievance which is voiced in the present Tax Appeals is that despite the fact that respective appeals prefer .....

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appeal before it as if the appeals before it were against the order passed by the first appellate authority on merits. 5.0. Shri Devan Parikh, learned Senior Advocate for the respective respondentsdealer is not in a position to dispute the above facts. 6.0. Having heard the learned advocates appearing on behalf of the respective parties and considering the orders passed by the first appellate authority as well as the impugned judgment and order passed by the learned tribunal, it emerges that th .....

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der passed by the first appellate authority with respect to the amount of predeposit and / or dismissing the appeals on non payment of predeposit as directed earlier unless circumstances warranted such as identical question / issue pending before the learned Tribunal 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, i .....

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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 State of Gujarat Vs. Tudor India Ltd. as .....

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e authority has rejected the case of assessee on the ground of pre deposit, instead of considering the request 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 .....

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e authority, either side is entitled to challenge such reasonings before the second appellate authority. Not 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 .....

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r 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 Beec .....

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not gone into the merits. Therefore, the only question before the Tribunal was whether pre deposit was 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. 8.2It 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 Tribun .....

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rected 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 deposit so also on the question of merit. 7.2 Even subsequently also in number of cases different Division Benches had set aside the similar orders passed by the learned .....

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