TaxTMI 
TaxTMI 
2015 (3) TMI 870
X X X X Extracts X X X X
X X X X Extracts X X X X
....eal before the First Appellate Authority as the condition of predeposit of 20% of the amount was not complied with the Appeal was dismissed. In the Second Appeal before the Tribunal, instead of deciding the question of predeposit, the Tribunal proceeded to examine the merits of the Appeal and passed the impugned order. Under the circumstances the present Appeal is before this Court. 5. We have heard Ms. Vaibhavi Parikh learned counsel appearing for the appellant and Mr. Dave learned Assistant Government Pleader for the respondentState revenue. 6. In our view the issue is already covered by the earlier decision of this Court in Tax Appeal No. 1353 of 2014 decided on 9th January 2015 wherein this Court had observed thus: "1.We may record that in Tax Appeal No.1323 of 2014, this Court had passed the following order on 5.12.2014:- Learned advocate pointed out that the appeal before the Tribunal arose out of order passed by the first appellate authority on the issue of predeposit. The Tribunal instead of deciding such issue, proceeded to hear the appeal on merits. Notice of final disposal returnable on 9.1.2015. 1. Mr.Asthavadi, learned Counsel appears for the responde....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that the appeal before the Tribunal arose out of the order passed by the first appellate authority on question of predeposit. The Tribunal, in the impugned judgement, instead of deciding such issue, considered the questions on merits and substantially allowed the assessee's appeal. In our opinion, the only scope of the appeal before the Tribunal was, whether the first appellate authority had committed an error in insisting on a 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. Th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppellate Commissioner was too onerous to be fulfilled by the appellant and the facts of the case warranted interference, the Tribunal could as well have done it. In such a scenario, the Tribunal ought to have placed appeal back to the Appellate Commissioner, on such condition that the Tribunal thought fit to impose on the appellant. In the present case, without expressing any opinion on the Appellate Commissioner imposing the condition of 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 appella....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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 20....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the prayer clauses of his appeal before the Tribunal, the remanded appeal shall not be entertained by the Tribunal questioning the merits of the order of assessment. This appeal is disposed of accordingly. In view of the order passed in the main appeal, the connected Civil Application does not survive and the same stands disposed of accordingly. 3. Under the circumstances, the question is answered in favour of the appellate. Judgement of the Tribunal 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." 7. There are no distinguishing facts and circumstances on the question of predeposit. Hence, the question is required to be answered in negative, in favour of the assessee and against the revenue. It further appears that in the impugned judgment of the Tribunal the condition of predeposit was considered to the extent that the Tribunal had directed the assessee to deposit the amount of Rs. 36,000/as predeposit and the said amount was deposited. It further appears that when the Appeal was heard by the Tribunal the learned advocate for the assessee had also declared ....