ORDER :

1. Rule, returnable forthwith. Learned AGP waives service of notice of Rule for and on behalf of the respondent-State.

2. This petition is filed with a prayer to quash and set aside the order dated 08.09.2022 and order dated 20.07.2022 passed by the Gujarat Value Added Tax Tribunal (‘the Tribunal’ hereinafter) in Second Appeal No. 988 of 2019. Briefly stated facts are as follow:

2.1 The petitioner is engaged in the business of reselling auto parts, tyers, tubes, etc. purchased certain goods and exported the same outside the country.

2.2 On 08.08.2012, a surprise visit was made at the business premises of the petitioner by Assistant Commissioner of State Tax, however, according to the petitioner, no evasion was found at the time of search.

2.3 It is the case of the petitioner that Assessing Authority thereafter on 31.03.2016, proceeded to pass assessment order, wherein direction of certain export sales was disallowed on the ground that the petitioner failed in producing the export proofs.

2.4 Against the order of the Assessing Authority dated 31.03.2016, the petitioner filed appeal, however, the same could not be decided on merits, as on account of dispute of the petitioner with his legal representative, the legal representative did not remain present and the appeal was dismissed on the ground of non-prosecution.

2.5 Against the order of First Appellate Authority dated 17.01.2017, the petitioner preferred Second Appeal before the Tribunal. The Tribunal under order dated 20.07.2022 directed the petitioner as under:

“(6) Considering the submission of both the parties it is crystal clear that appellant has not paid any pre-deposit before the First Appellate Authority as per section 73 of the GVAT Act and appellant is bound to pay reasonable pre-deposit. Now to determine the reasonable pre-deposit in this matter the tax demand is Rs. 6,95,01,762/- Interest is Rs. 5,00,41,269/- and penalty is Rs. 20,85,05,286/- total Rs. 32,80,48,317/- against this demand the First Appellate Authority has not decided any pre-deposit in their order, the pre-deposit is only on tax elements without tax and interest, in this matter the Tax demand is approximately of Rs. 6.95 Cr and this is a tax dispute for the financial year 2011-12 considering the facts on record and prima facie facts of the case Tribunal is direct reasonable pre-deposit in view of Tribunal in this case considering the Tax demand Rs. 1 Cr. is reasonable and sufficient pre-deposit as per section 73 of the GVAT Act and appellant is directed to make the payment of Rs. 1 Cr. within the period of one month.

(7) For compliance the order and production of pre-deposit challan of Rs. 1 Cr. and for compliance the order and production of cost challan of Rs. 3,000/- present matter is further adjourned to 08.09.2022.

(8) On payment of aforementioned pre-deposit amount, stay against recovery proceedings for the financial year 2011-12 shall come into operation.

(9) Registry is directed to place present Second Appeal for compliance the order and production of pre-deposit challan on 08.09.2022.”

2.6 Pursuant to the order dated 20.07.2022 passed in Second Appeal, the matter was placed for compliance on 08.09.2022, wherein the Tribunal has passed the following order:

“(A) Second Appeal No. 988 of 2019 is hereby dismissed for non compliance of the direction of pre-deposit passed by this Tribunal on 20.07.2022 as per section 73 of GVAT Act.

(B) Any relief is granted earlier is hereby vacated with immediate effect.

(C) Accordingly the present Second Appeal stands dismiss with no order as to cost.”

2.7 Aggrieved by the order dated 08.09.2022, present petition is filed.

3. Heard the learned advocate, Mr. Uchit Sheth for the petitioner and learned AGP, Mr. Trupesh Kathiriya for respondent-State.

4. Learned advocate, Mr. Uchit Sheth has submitted that the order of the Tribunal dated 08.09.2022 demanding pre-deposit and thereafter summarily dismissing the appeal on the ground of non-payment of pre-deposit is arbitrary an