TMI Blog2018 (2) TMI 1383X X X X Extracts X X X X X X X X Extracts X X X X ..... of facts have been properly threshed out by the Tribunal at first or second appellate stage as the case may be. The scheme of the Act would not permit the Tribunal to jettison the first appeal before the Commissioner and allow itself to act as first Appellate Authority. If the second appeal lies before the Tribunal and the Tribunal were to disregard the first appellate forum and convert itself into first Appellate Authority, the same would be froth with two difficulties. The Tribunal had all legal options at its command while considering this issue but certainly under no circumstances had the option of deciding all disputes between the parties on merits by itself, relegating the Commissioner to the position of mere appendage. Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority in the appeal before itself and after recording reasons, deleted such penalty. 4. Having heard learned counsel for the parties, we find a fundamental error in the judgment of the Tribunal in entertaining the issue of legality of the order of the adjudicating authority directly before itself. As is well known, the provisions of the VAT Act contain a detailed mechanism for assessment, reassessment and collection of tax. Such provisions include appeal and revision provisions before the specific authorities. Against the order of the Tribunal, further appeal would lie before the High Court only on question of law. The Tribunal is thus the final fact finding authority. In number of cases, the Tribunal would be second Appellate Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the Tribunal acts as a first Appellate Authority though the statute requires it to act as a second Appellate Authority, the consideration of questions of fact which by now well recognized principles attain finality at the level of the Tribunal, do not go through levels of scrutiny and filtration desired by law, leaving the High Court to accept all such findings of fact before the authorities prescribed by the statute have the opportunity to decide them. This is most disturbing and avoidable aspect of the matter on which we have in the past also commented. 6. In a judgment in case of State of Gujarat v. Tudor India Ltd., passed in Tax Appeal No.711 of 2013, the Court had made following observations: 7. As we have noticed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the decision of the higher forum, it can always direct the parties to agitate these aspects before the concerned authority [first Appellate Authority here]. 8. We also need to take note of the fact that the intent of incorporating the provision of predeposit before proceeding with the appeal is well carved out by the decision of the Apex Court in case of Benara Valves Limited v. Commissioner of Central Excise, reported in 2006 [204] ELT 513 (SC). 8.1 If either side approaches the Tribunal, being aggrieved by the order of either grant or rejection of requirement of predeposit, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion held hereinabove, we therefore are of the opinion that this appeal deserves to be remanded back to the Tribunal so as to emphasis the requirement of not permitting any such short circuiting of the process at any stage. We have chosen not to enter the arena of merit of the case at all as is apparent from the discussion held hereinabove. 7. The appeal before the Tribunal in the present case involved only one question viz. whether the Commissioner was right in imposing certain predeposit condition and consequently right in rejecting the appeal upon the assessee failing to fulfill such condition. The Tribunal had all legal options at its command while considering this issue but certainly under no circumstances had the option of deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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