2014 (4) TMI 293

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.... the merits of the order of assessment without deciding the question of predeposit ?" 2. On the short ground of propriety of the Tribunal in deciding the question on merits when the sole question before the Tribunal in appeal filed was regarding the predeposit, we are inclined to quash the order. Our reasons are as follows. 3. The appellant has challenged the judgment of the Value Added Tax Tribunal (hereinafter referred to as 'the Tribunal') dated September 12, 2013 in Second Appeal No.72 of 2012. Such appeal was filed questioning the judgment of the Joint Commissioner of Commercial Tax, Appeals3, Rajkot, dated November 30, 2011. Such order was passed on an application for waiver of predeposit pending an appeal before the sai....

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....l concerning the question of predeposit. The Tribunal was called upon to decide whether the appellant, to maintain its appeal before the Appellate Commissioner, should be asked to deposit the entire amount of tax by way of predeposit or only part thereof or none at all. The Tribunal had to answer such question as found appropriate. In our opinion, the Tribunal under no circumstances could have bypassed the first appellate stage and decided the appeal as if it was a second appeal on merits before the Tribunal. Till the issue of appropriate amount to be deposited by way of predeposit was sorted out and such amount was deposited by the appellant, the appeal before the Deputy Commissioner was not even properly instituted. In a recent judgment d....

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....ppellate Commissioner exercised such powers and required the appellant to deposit 25% of the amount confirmed by the adjudicating authority. When the appellant failed to fulfill such requirement, his appeal came to be dismissed. It was against this order that the appellant had preferred appeal before the Tribunal. The scope of the appeal before the Tribunal, therefore, had to be limited to the question of finding out whether the order passed by the Commissioner insisting on the appellant depositing certain amount by way of predeposit was valid or not and resultantly, his decision to reject such an appeal for noncompliance with such requirement was correct or not. 5. Unless and until the answers were given to such questions, the appellant....

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....prayer for setting aside the appellate order of imposing condition and subsequently, dismissing his appeal when he failed to fulfill such condition. Even if it were so, the Tribunal could have either permitted the appellant to suitably amend the prayer or if the appellant was not willing to do so, dismiss his appeal as not maintainable. In our opinion, the Tribunal could not have bypassed the first appellate authority and statutory requirement of predeposit, unless it was waived by an order in writing. 6. We are at pains to record our findings since we find that this is not an isolated case, where such order has been passed. This Court has come across such orders of the Tribunal on more than one occasion. 7. In an order dated August 3....

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....thority 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 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, ....