STATE OF GUJARAT Vs. NAVJIVAN PACKING MACHINERY

JUDGEMENT

(1.) FEELING aggrieved and dissatisfied with the impugned judgment and order passed by the learned Gujarat Value Added Tax Tribunal (hereinafter referred to as "the Tribunal") dated 17/2/2014 in Second Appeal No. 64 of 2014 by which, the learned tribunal has partly allowed the said appeal by deleting the penalty imposed, with the following proposed substantial questions of law: -

(2.) THE main grievance voiced by Ms. Vacha Desai, learned Assistant Government Pleader appearing on behalf of the appellant -State is that as the appeal before the learned Tribunal was against the order of first appellate authority dismissing the appeal on the ground of non -deposit of pre -deposit, in light of the decisions of this Court in Tax Appeal Nos. 711/2013 dated 30/08/2013; 667/2013 dated 12/09/2013; 688/2013 dated 30/01/2014; 595/2014 dated 13/08/2014; 1317/2014 dated 11/12/2014 and 104/2015 dated 19/03/2015, the learned Tribunal ought not to have entered into the merits of the case and/or ought not to have decided the issue on merits and/or considered the legality and validity of the original assessment order and, therefore, it is requested to quash and set aside the impugned order passed by the learned Tribunal and remand the matter either to the learned Tribunal or to the learned first appellate authority.

(3.) NOW so far as the questions of law proposed/raised in the present Tax Appeal and one of the question, which is raised that the learned Tribunal ought not have entered into the merits of the case and the order impugned before the learned Tribunal was the order passed by the learned first appellate authority dismissing the appeal on non -deposit of pre -deposit is concerned, it is true that in light of the decisions of this Court in aforesaid Tax Appeals, the impugned order passed by the learned Tribunal deserves to be quashed and set aside and the matter is to be remanded to the learned Tribunal or to the learned first appellate authority. However, for the reasons stated hereinbelow and in the facts and circumstances of the case, more particularly, when the main issue involved is now squarely covered by the decision of the Division Bench of this Court in the case of Cosmos International Ltd. (Supra), we propose to consider the issue on merits rather than remanding the matter either to the learned Tribunal or to the learned first appellate authority as no fruitful purpose would be served now by remanding the matter to the learned Tribunal and/or even the learned first appellate authority as now the main issue on merits is concluded against the revenue by the judgment and order of this Court in the case of Cosmos International Ltd. (Supra). However, the aforesaid shall be in the peculiar facts and circumstances of the case narrated hereinabove and without citing the same as a precedent.