TaxTMI 
TaxTMI 
2015 (5) TMI 340
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....10.2013 passed in Second Appeal Nos.559 of 2012 and 560 of 2012 by which, the learned Tribunal has allowed the aforesaid appeals and has set aside the orders passed by the authorities below on the show cause notice issued by the Excise Department and has consequently, set aside the demand raised as a result thereof, the appellant-State of Gujarat, through the Commissioner of Commercial Tax, has preferred the present tax appeals with the following proposed questions of law:- "(1) Whether the Hon'ble Tribunal has erred in deciding the appeal on merits despite the fact that the first appellate authority dismissed the appeal for failure to deposit the pre-deposit? (2) Whether the Hon'ble Tribunal erred in holding that the assessment order....
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....erits, when the appeals before the learned Tribunal were against the order passed by the first Appellate Authority dismissing the appeals on the ground of non-deposit of the amount of pre-deposit. 3.1. Ms.Vacha Desai, learned A.G.P. has requested to remand the matters to the adjudicating authority and not to remand the matters to the first Appellate Authority by submitting that if ultimately, it is found and held that the adjudicating authority raised demand solely relying upon the notice issued by the Excise Department and without holding any inquiry, in that case, the matters are required to be remanded to the adjudicating authority to pass appropriate order afresh in accordance with law and on merits and after holding necessary inquir....
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....g the notice issued by the Excise Department, the Assessing Officer passed the orders which was not permissible and consequently, the learned Tribunal has set aside the assessment orders. 5.1. However, it is required to be noted that the appeals before the learned Tribunal were against the orders passed by the first Appellate Authority dismissing the appeals on the ground of non-deposit of the amount of pre-deposit only and not on the merits of the case. 6. Under the circumstances and in view of the catena of decisions of this Court and the subsequent recent decision of the Division Bench of this Court in the case of City Tiles Limited (supra), it was impermissible for the learned Tribunal to decide the appeals on merits when the appe....
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....epted. It is required to be noted that we are quashing and setting aside the order passed by the learned Tribunal on the ground that as the first Appellate Authority has dismissed the appeals on the ground of non-deposit of the amount of pre-deposit only, the learned Tribunal ought not to have considered the appeals on merits. Applying the same logic, it will not be appropriate and/or proper for this Court to consider the issue on merits. The aforesaid is required to be considered by the first Appellate Authority while deciding the appeals on merits and while passing appropriate order. It goes without saying that the first Appellate Authority will consider the same argument and deal with the same in accordance with law and on merits. 9. ....