TMI Blog2016 (4) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax in respect of which an appeal has been preferred. Thus, ordinarily an appeal cannot be entertained unless the tax assessed under the assessment order is paid and proof thereof is submitted along with the appeal. Sub-section (4) of section 73 of the GVAT Act, however, carves out an exception by vesting in the Tribunal the discretion to entertain an appeal, if it thinks fit, for reasons to be recorded in writing, inter alia, without payment of tax with penalty (if any) or, as the case may be, of penalty. Thus, no dealer can demand as a matter of right that his appeal should be heard without payment of tax or penalty and it is for such dealer to satisfy the Tribunal that a case has been made out for total exemption from payment of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the petitioner on account of non- payment of pre-deposit, as directed vide order dated 18.9.2015. 2. It is the case of the petitioner as averred in the petition that it is engaged in the business of dealing with tax free goods covered by Schedule I of the GVAT Act. The Assistant Commissioner of Commercial Tax passed an ex-parte assessment order dated 29.3.2014 with respect to the assessment period 1.4.2009 to 31.3.2010 raising a total demand of ₹ 3,57,12,395/-, including interest and penalty under the provisions of the GVAT Act and also raised a demand of ₹ 58,20,230/-, including interest and penalty for the assessment period 1.4.2009 to 31.3.2010 under the provisions of the CST Act. The petitioner carried the matter i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s permitted to enter the said premises. It is the case of the petitioner that it had clearly stated the reasons for not producing the documents in the affidavit, but the Tribunal, without considering the true purport of the affidavit, vide impugned order dated 18.9.2015, held that there was no ground to interfere with the order of pre-deposit of ₹ 10,00,000/- under the GVAT Act. It, however, reduced the amount payable under the CST Act to ₹ 1,00,000/- from ₹ 2,00,000/- and adjourned the matter to 19.10.2015 for compliance thereof. On 19.10.2015, the petitioner produced considerable material such as commodity wise stock inventory, statement of tax free goods, copy of ledger account of Temptation Foods Limited to which the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount as directed by the Tribunal, and that the matter is required to be restored to the Tribunal for reconsidering the question of pre-deposit afresh, after giving the petitioner an opportunity of hearing and of producing documentary evidence in support of its case. It was, accordingly, urged that the petition deserves consideration. 4. This court has considered the submissions advanced by the learned advocate for the petitioner and has perused the record of the case as placed before it. From the facts, as narrated hereinabove, what emerges is that the Tribunal, by the order dated 18.9.2015, had directed the petitioner to deposit an amount of ₹ 10,00,000/- under the GVAT Act and ₹ 1,00,000/- under the CST Act by way of pre-de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of right that his appeal should be heard without payment of tax or penalty and it is for such dealer to satisfy the Tribunal that a case has been made out for total exemption from payment of tax with penalty. However, the Tribunal, while considering an application for waiver of tax and penalty for the purpose of hearing the appeal is required to exercise discretion in a judicious manner. 6. Adverting to the facts of the present case, as can be seen from the impugned order, the Tribunal, having regard to the facts and circumstances of the case, has exercised its discretion and has directed the petitioner to deposit a total amount of ₹ 11,00,000/- as against a total demand exceeding ₹ 4,00,00,000/-. Having regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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