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M/s M.K. Overseas Pvt. Limited Versus State of Punjab and others

2016 (5) TMI 647 - PUNJAB AND HARYANA HIGH COURT

Interpretation and validity of Section 62(5) of the Act - against revisional order passed by the Commissioner, revision is maintainable under Section 65(2) of the Act. Further subsection (3) of Section 65 of the Act which is pari materia to Section 62 (5) of the Act provides for mandatory pre-deposit before entertaining of revision by the Tribunal. Sub-sections (2) and (3) of Section 65 of the Act - Held that:- after considering the relevant statutory provisions and the case law on the point, in .....

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2433, C. W. P. Nos. 2454, C. W. P. Nos. 2456, C. W. P. Nos. 2474 of 2016 - Dated:- 5-4-2016 - MR. AJAY KUMAR MITTAL AND MRS. RAJ RAHUL GARG, JJ. For The Petitioner : Mr. Sanjiv Thakur, Advocate for Mr. Sanjiv Bansal, Advocate Ajay Kumar Mittal,J. 1. This order shall dispose of CWP Nos.2192, 2433, 2454, 2456 and 2474 of 2016 as according to the learned counsel for the petitioner(s), the issue involved in all the petitions is identical. However, the facts are being extracted from CWP No.2192 of 2 .....

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P No.2192 of 2016 may be noticed. The petitioner is a company namely M/s M.K.Overseas Pvt. Limited. It is engaged in the business of processing of meat and sales thereof. The petitioner purchases discarded buffalos as raw material and after slaughtering the same, the meat is processed, packed and frozen for sale, whereas the other byproducts such as meat bone meal and Tallow oil are extracted. Under Section 16 of the Act, certain goods are notified as tax free goods as per Schedule A appended to .....

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osed a penalty of ₹ 1,03,495/- under Section 51(7)(b) of the Act The petitioner filed an appeal against the order before the Deputy Excise and Taxation Commissioner (Appeals) [DETC]. Vide order dated 5.8.2013, Annexure P.4, the matter was remanded to the Designated Officer with a direction to examine whether the item was covered under Schedule 'A' or not and if it was covered, reasons for levy of penalty be given. After the remand, vide order dated 24.3.2014, Annexure P.5, the Desi .....

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ion before respondent No.3 who issued notice dated 5.11.2015, Annexure P.8 to the petitioner requiring it to produce certain documents. The petitioner submitted reply dated 17.11.2015, Annexure P.9 claiming that no amount had either been saved from taxation nor was required to be added back as stipulated in the notice dated 5.11.2015, Annexure P.8. Thereafter, the petitioner received order dated 2.12.2015, Annexure P.10 whereby respondent No.3 passed order under Section 65 of the Act requiring t .....

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Court in the said petition:- (a) Whether the State is empowered to enact Section 62(5) of the PVAT Act? (b) Whether the condition of 25% pre-deposit for hearing first appeal is onerous, harsh, unreasonable and, therefore, violative of Article 14 of the Constitution of India? (c) Whether the first appellate authority in its right to hear appeal has inherent powers to grant interim protection against imposition of such a condition for hearing of appeals on merits? This Court while upholding the pr .....

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he PVAT Act. Instead of rushing to the High Court under Article 226 of the Constitution of India, the grievance can be remedied at the stage of first appellate authority. As a sequel, it would follow that the provisions of Section 62(5) of the PVAT Act are directory in nature meaning thereby that the first appellate authority is empowered to partially or completely waive the condition of pre-deposit contained therein in the given facts and circumstances. It is not to be exercised in a routine wa .....

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a condition precedent to the hearing of the appeal before it. Therefore, the power to grant interim protection/injunction by the first appellate authority in appropriate cases in case of undue hardship is legal and valid. As a result, question (c) posed is answered accordingly. 34. In some of the petitions, the petitioners had filed an appeal without filing an application for interim injunction/protection which are still pending whereas in other petitions, the first appellate authority had dismi .....

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ided by the said authority keeping in view all the legal principles enunciated hereinbefore. The other cases where the first appellate authority had dismissed the appeal for want of pre-deposit without touching merits of the controversy or further appeal has been dismissed by the Tribunal, the said orders are set aside and the matter is remitted to the first appellate authority where the petitioners may file an application for interim injunction/protection before the appeals are taken up for hea .....

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