TaxTMI 
TaxTMI 
TaxTMI 
2010 (12) TMI 1089
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....r made an application dated July 7, 2006 under section 80(1)(e) of the Gujarat Value Added Tax Act, 2003 (the Act) to the Joint Commissioner of Commercial Tax (Legal), Gujarat for determination of availability of credit of value added tax paid at the rate of four per cent on purchase of raw material within the State of Gujarat. The said application came to be decided vide order dated November 30, 2006 holding that as per the provisions of section 11(3)(b)(i), four per cent would be deducted from the tax credit available to the petitioner and the remaining amount would be admissible as tax credit. No finding was given in relation to inapplicability of section 11(3)(a)(i) of the Act. Being aggrieved, the petitioner preferred an appeal before ....
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.... assessment year 2006-07 and April 1, 2007 to July 31, 2007. Being aggrieved by the order passed by the Tribunal directing pre-deposit of an amount of Rs. 1,17,70,107, the petitioner has moved the present petition under articles 226 and 227 of the Constitution of India. Mr. S.N. Soparkar, learned senior advocate appearing on behalf of the petitioner, invited the attention of the court to the impugned order of the Tribunal and more particularly, to paragraphs 20.5 to 25 thereof to point out that the Tribunal has placed reliance upon a decision of the apex court in the case of Benara Valves Ltd. v. Commissioner of Central Excise [2009] 20 VST 297 (SC); [2007] 8 RC 6; [2006] 13 SCC 347, and has considered the question of undue hardship as env....
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....nal was concerned with the question of waiver of pre-deposit under sub-section (4) of section 73 of the Gujarat Value Added Tax Act which does not lay down that the deposit of duty can be dispensed with only where it would cause undue hardship to the person concerned and that the same has to be subject to such condition as the Tribunal may deem fit so as to safeguard the interests of the Revenue. It was submitted that the concept of undue hardship is alien to the Gujarat Value Added Tax Act and as such, the Tribunal while considering an application under the Gujarat Value Added Tax Act could not have brought in the concept of undue hardship as envisaged under section 35 of the Central Excise Act as well as the concept of imposing conditions....
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....he averments made in the affidavit-in-reply dated December 21, 2010 made on behalf of respondent No. 1. It was submitted that the Tribunal has passed the interim order after appreciating the relevant provisions of law and the documentary evidence on record and as such, no case is made out so as to warrant intervention by this court. As can be seen from the impugned order of the Tribunal, in the earlier paragraph, the Tribunal has considered the merits of the case and in paragraph 20.4, the Tribunal has considered the legal submissions and has found that the petitioner had raised a substantial question of law and has accordingly admitted the appeal. In paragraph 20.5, the Tribunal has referred to the judgment of the Supreme Court in the cas....
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....unal has considered the application made by the petitioner under subsection (4) of section 73 in the light of the decision of the Supreme Court in the case of Benara Valves Ltd. [2009] 20 VST 297 (SC); [2007] 8 RC 6; [2006] 13 SCC 347. On a perusal of the said decision, it is apparent that the same has been rendered in the context of section 35F of the Central Excise Act, 1944 which specifically provides that where in a particular case, the Appellate Tribunal is of the opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Appellate Tribunal, may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interests of the Revenue. Since, the....
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....re worded differently, the Tribunal was not justified in drawing an analogy from the provisions of section 35F of the Central Excise Act while considering the question of waiver of pre-deposit under the Value Added Tax Act. On behalf of the respondents, it has been contended that the Tribunal has considered the question as to whether or not a prima facie case has been made out and that merely because the Tribunal has referred to the issue of undue hardship, is no reason for the court to interfere when there is otherwise no infirmity in the impugned order of the Tribunal. The aforesaid submission does not merit acceptance inasmuch as, as is apparent from the impugned order of the Tribunal, strong reliance has been placed by the Tribunal upo....