2018 (2) TMI 1383

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ue Added Tax Tribunal dated 08.02.2016, by which, the appeal of the assessee came to be allowed and penalty imposed by the adjudicating authority came to be deleted. 3. Materials on record would suggest that against the adjudicating authority's order, the department approached the Appellate Commissioner. The Appellate Commissioner imposed a certain requirement of predeposit as per the statutory provisions. Since the assessee did not fulfill this requirement, appeal was dismissed only on this ground. It was this order of the Commissioner which the assessee challenged before the Tribunal. In the course of hearing of the appeal, the Tribunal was informed that the assessee has deposited not only the predeposit amount but the entire princip....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ellate stage as the case may be. The scheme of the Act would not permit the Tribunal to jettison the first appeal before the Commissioner and allow itself to act as first Appellate Authority. If the second appeal lies before the Tribunal and the Tribunal were to disregard the first appellate forum and convert itself into first Appellate Authority, the same would be froth with two difficulties. First is, the statute would not recognize any such interchanging or conversion of the appellate fora. In other words, if the Tribunal is second Appellate Authority, it can decide the matter only after the first Appellate Authority has spoken upon the subject and not before. The order of the Tribunal therefore after converting itself into first Appella....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ly that we have chosen to remand this matter. Once, when assessee chooses not to comply with the requirement of making predeposit or contest the matter on the ground of predeposit and either side approaches the second Appellate Authority, there does not arise any question of circumventing the very stage and exercise the powers of first Appellate Authority. We say so as the Statute provides that even on adjudication of the issue on merit by the first Appellate Authority, either side is entitled to challenge such reasonings before the second Appellate Authority. Not only the parties and the second Appellate Authority would be deprived of the reasonings of the first Appellate Authority but chance of either sides of availing the opportunity of ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d 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 the appeal on merits also. This should not have been done." 8.2 It is not the case of either side that an identical question of law was pending before the Tribunal in some other appeals concerning the very assessee, or identical question of law in respect of very assessee for different assessment year was before the Tribunal, and in such circumstances, wit....