TaxTMI 
TaxTMI 
2015 (2) TMI 616
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....anding tax amount with penalty was assessed at Rs. 1,09,561/-. The respondent preferred appeal against the order of assessment and in the said appeal, interim application was made for stay to waive condition of pre-deposit. The first Appellate Authority vide order dated 14.05.2012, found that as there is no willingness to comply with the condition of pre-deposit, the appeal was not entertained and was dismissed. The Tribunal, in the Second Appeal, instead of examining the aspect of predeposit, has proceeded to examine the merits of the appeal and had passed the impugned order on 04.03.2014 whereby, the Tribunal has partly allowed the appeal. Under the circumstances, the Revenue has preferred the present appeal on the abovereferred substantial question of law. 4. We may record that similar question came up for consideration before this Court in earlier matter of Tax Appeal No.1317 of 2014 decided on 11.12.2014 as well as in Tax Appeal No.1353 of 2014 decided on 09.01.2015. This Court, in said Tax Appeal No.1353 of 2014 with Tax Appeal No.1323 of 2014, observed at paragraph Nos.6 to 11 as under:- "6. In both these appeals, substantial question of law can be formulated as under:- "....
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.... certain predeposit being made by the assessee in order to pursue the appeal on merits? In the process, the Tribunal could have either confirmed, set aside or modified such order on the condition of pre deposit. Tribunal could not have allowed the assessee's appeal on merit since the assessee's first appeal before the authority was not maintainable without either making full predeposit or complying with the condition of part predeposit as may be imposed by the appellate authority and if so, modified by the Tribunal. In our judgement passed in Tax Appeal No. 688 of 2013, we had recorded as under: "3. We are of the opinion that the Tribunal committed serious error in examining the appellants grievances on the merits of the order of assessment. The order of assessment was passed by the adjudicating authority, which was appellable by way of first appeal before the Appellate Commissioner. Section 73(4) of the Gujarat Value Added Tax Act, 2003, requires that no appeal against the order of assessment shall ordinarily be entertained by the Appellate Commissioner, unless such appeal is accompanied by proof of payment of tax in respect of which the appeal has been preferred. Proviso....
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....f part predeposit on the appellant, the Tribunal accepted the appellant's Second Appeal as if there was no intermediary stage of the appeal before the Appellate Commissioner or any requirement of predeposit under section 73(4) of the Act. We cannot lose sight of the fact that the appellant himself also substantially contributed to this complication. In the appeal, his main grounds were against the assessment order. His prayers pertained only to the issues on merits about the additions made by the Assessing Officer. There was no 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 s....
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....t 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 the amount of predeposit. However, that would not ipso facto entitle the Tribunal to give a complete go bye to the well laid down procedures of law as also such requirement of predeposit and decide the matter on merit. We are also backed in our conclusion by another decision of the Apex Court rendered in case of Commissioner of C.Ex., Chandigarh v. Smithkline Beecham Co. Health C. Limited., reported in 2003 [157] ELT 497 (SC), wherein it is observed, thus "2. This appeal is filed against an order passed by the Customs, Excise & Gold [Control] Appellate Tribunal dated 19th December 2002. The Tribunal was hearing an appeal against an order dated 23rd April 2002 passed by the Commissioner of Central Excise [Appeals]. By that order, the Commissioner [Appeals] had merely dismissed the appeal because predeposit was not made. The Commissioner [Appeals] had not gone into the merits. Therefore, the only question before the Tribunal was whether predeposit was required or not. The Tribunal has chosen to go into the merits and decided....
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....al is set aside. Appeal is restored before the Tribunal for fresh consideration bearing in mind the observations made hereinabove. Tax appeal is disposed of accordingly." 11. Neither Mr.Trivedi nor Mr.Asthavadi has contended that there are any distinguishing circumstances in the present appeals. Hence, the question formulated has to be answered in negative. Consequently, the judgement of the Tribunal is set aside. The appeal is restored before the Tribunal for fresh consideration bearing in mind the observations made herein above." (Emphasis supplied) 5. We find that the similar situation would arise in the present matter inasmuch as, as per the abovereferred decision of this Court, the answer to the question has to be in affirmative to the extent that the Tribunal has committed error in examining the matter on merits instead of examining the question for pre-deposit and, therefore, the order passed by the Tribunal would be required to be quashed and set aside with the further direction that the appeal stands restored to the Tribunal for fresh consideration bearing in mind the observations made hereinabove. Hence, ordered accordingly. 6. Before parting with, we need to record t....