SATYASAGAR INDUSTRIES Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD learned counsel for the parties for final disposal of the appeal on the following substantial question of law :

(2.) THE appellant has challenged the judgment of the Value Added Tax Tribunal (hereinafter referred to as 'the Tribunal') dated September 05, 2013 in Second Appeal No. 675 of 2011. Such appeal was filed questioning the judgment of the Deputy Commissioner of Commercial Tax, Appeals -6, Bhavnagar, dated July 16, 2011. Such order was passed on an application for waiver of pre -deposit pending an appeal before the said authority. The Appellate Authority insisted that the appellant must deposit the entire amount of the assessed tax by way of pre -deposit. Since the appellant was unable to do so, the appeal was not entertained.

(3.) IT is against this order that the appellant has filed this Tax Appeal. In our opinion, the Tribunal committed serious error in examining the validity of the assessment order in an appeal concerning the question of pre -deposit. The Tribunal was called upon to decide whether the appellant, to maintain its appeal before the Appellate Commissioner, should be asked to deposit the entire amount of tax by way of pre -deposit or only part thereof or none at all. The Tribunal had to answer such question as found appropriate. In our opinion, the Tribunal under no circumstances could have bypassed the first appellate stage and decided the appeal as if it was a second appeal on merits before the Tribunal. Till the issue of appropriate amount to be deposited by way of pre -deposit was sorted out and such amount was deposited by the appellant, the appeal before the Deputy Commissioner was not even properly instituted. In a recent judgment dated January 30, 2014, in somewhat similar background, this Court in the case of Anilkumar v. State of Gujarat, [2014] 43 GST 696/42 taxmann.com 340, observed as under: