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2015 (12) TMI 644 - GUJARAT HIGH COURT

2015 (12) TMI 644 - GUJARAT HIGH COURT - TMI - Waiver of pre deposit - Tribunal erred in granting stay against recovery till the disposal of appeal by the first appellate authority - Held that:- Tribunal, it has considered the merits of the case and has found as a matter of fact that a strong prima facie case has been made out in favour of the assessee. It is in the light of the prima facie view expressed by the Tribunal viz., that its earlier decision in the case of M/s Vardan Petrochemical (P) .....

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of the assessee, it cannot be said that the discretion exercised by it in refusing the amount of pre-deposit is, in any manner, unreasonable, or arbitrary so as to give rise to any question of law. - Decided against Revenue. - TAX APPEAL NO. 718, 719, 721, 722, 723, 729 & 730 of 2015 - Dated:- 9-10-2015 - Ms. Harsha Devani And Mr. A.G. Uraizee, JJ For the Petitioner : Mr. Bhargav Pandya, Assistant Government Pleader For the Respondent : Mr. Uchit N Sheth, Advocate ORDER PER : MS. HARSHA DEVANI 1 .....

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of appeal by the first appellate authority? 2. The facts stated briefly are that an assessment order came to be passed in the case of the assessee for the financial year 2008-2009 on 30th June, 2012 raising a demand of ₹ 97,66,998/-. The respondent - assessee preferred an appeal before the Deputy Commissioner of Commercial Tax, Appeal-4, Vadodara, who directed the respondent to make predeposit of 10% of the total demand. Since the pre-deposit, as directed by the Deputy Commissioner, was n .....

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thority had, after duly considering the merits of the case, directed the assessee to make pre-deposit of 10% of the total demand. It was on account of non-deposit of such amount, that the appeal came to be dismissed. Referring to the impugned order passed by the Tribunal, it was submitted that the Tribunal has, more or less, decided the matter on merits by stating that its earlier decision in the case of M/s Vardan Petrochemical (P) Ltd. v. State of Gujarat rendered on 9th June, 2014 in Second A .....

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77; 25,00,000/- and has restored the appeal to the file of the Deputy Commissioner upon pre-deposit of only ₹ 20,00,000/-. It was submitted that while passing the impugned order, the Tribunal has not come to any conclusion that the respondent - assessee had made out any case of financial hardship so as to warrant reduction in the amount of pre-deposit. It was, accordingly, urged that the appeal does give rise to a question of law, as proposed or as may be deemed fit by this court. 4. On th .....

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Limited v. State of Gujarat and others, (2011) 41 VST 312 (Guj), wherein this court has expressed the view that unlike the provisions of section 35F of the Central Excise Act, 1944, sub-section (4) of section 73 of the Act nowhere provides that the Tribunal shall consider the question of waiver of the amount of pre-deposit only in case where undue hardship is made out and in such manner so as to protect the interests of the revenue. It was submitted that the appeal being devoid of merits, deserv .....

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