1. By this order it is proposed to dispose of an application made by the appellant under Section 12-D of the Jammu and Kashmir General Sales Tax Act, 1962, for reference to the Hon'ble High Court of Jammu and Kashmir. In order to understand the matter under consideration, in its proper perspective, a resume of what has been stated by the applicant in his application is given below:- "1. That this Hon'ble Tribunal passed order/ judgment dated September 22, 2011 in the above mentioned File No. 05/ST/T/J dated February 24, 2009 titled "M/s Rajinder Goods Carriers Versus Deputy Commissioner & Anr." While confirming the order/judgment dated November 22, 2008 passed by the Appellate Authority i.e. Learned Deputy Commissioner, Sales Tax (Appeals), Jammu, had dismissed the appeal of the appellant summarily on the ground that the appellant had not filed proof of payment of 20% of the assessed tax and 50% of the penalty imposed in the order/ judgment dated November 22, 2011. The certified copy of the order/judgment dated September 22, 2011 in the above mentioned File No. 05/ST/T/J dated February 24, 2009 titled "M/s Rajinder Goods Carriers Versus Deputy Commissioner & Anr", is enclosed herewith and is marked as Annexure-"A" for the kind perusal and appreciation of the Hon'ble Tribunal. 2. That the applicant is a carriage contractor. During the year under appeal, the applicant carried goods from Railway Station to different sites. The total payment received during the year amounted to Rs. 37,94,708/- (Rupees Thirty-Seven Lacs. Ninety-Four Thousand Seven Hundred and Eight Only) for which the returns were filed and the contractee deducted "Service Tax" amounting to Rs. 1,63,122/- (Rupees One Lac Sixty Three thousand One hundred and Twenty Two only) on the payment made to the applicant. Although the "Service Tax" is applicable only on execution of work and not for "Carriage of Goods' as per the Jammu and Kashmir General Sales Tax Act, 1962, the Assessing Authority created a demand of "Service Tax" amounting to Rs. 1,59,377/- (Rupees One Lac, Fifty Nine Thousand, Three hundred and seventy Seven only) inspite of the fact that the entire demanded amount had already been deducted at source and the certificates were enclosed alongwith the returns filed. Needless to mention herein that the Assessing Authority held the applicant liable to pay interest amounting to Rs. 1,59,377/- (Rupees One Lac, Fifty Nine Thousand, Three hundred and seventy Seven only) inspite of the fact that the entire demanded amount had already been deducted at source and the certificates were enclosed alongwith the returns filed. Needless to mention herein that the Assessing Authority held the applicant liable to pay interest amounting to Rs. 2, 27, 915/- (Rupees Two Lac, Twenty seven Thousand nine hundred and fifteen only) under section 8(8) of the Jammu and Kashmir General Sales Tax Act, 1962 and a penalty amounting to Rs. 31, 876/- (Rupees Thirty one Thousand Eight hundred and Seventy Six only) under section 17(1) of the Jammu and Kashmir General Sales Tax Act, 196. 3. That the dealer preferred Appeal No. 208/DCJ/AP/ST/ 2007-2008 dated February 02, 2008 titled "M/S Rajinder Goods Transport Carriers Versus Assessing Authority", against the order/ judgment dated December 28, 2007 passed by the Assessing Authority, Sales Tax, Circle-"O", Jammu under section 7(9) of the Jammu and Kashmir General Sales Tax Act, 1962, and also approached the Commissioner Sales Tax seeking stay of operation of the impugned order passed by the Assessing Authority, Circle-"O", Jammu which was dismissed on technical grounds vide order/judgment dated November 22, 2008 holding that the dealer failed to comply with the statutory requirement as laid down in clauses (b) and (c) of the 2nd proviso to Section 11 of the Jammu & Kashmir General Sales Tax Act, 1962. Further, it was brought to the notice of this Tribunal that the application seeking stay of operation of the impugned order passed by the Assessing Authority, Circle-O, Jammu, filed before the Learned Commissioner Sales Tax, was dismissed. However, the Learned Commissioner extended the date of payment of the demand for a period of one month under section 8 of the Jammu and Kashmir General Sales Tax Act, 1962 vide order No. 158/Stay/439-42/Jud./CST dated March 06, 2009. 4. That the applicant seeks reference to Hon'ble High Court under Section 12-D of the Jammu and Kashmir Sales Tax Act, 1962 (Act No. XX of 1962) to decide on: a) Whether the Assessing Authority is justified in imposing interest and penalty under section 8(8) and Section 17(1) of the Jammu and Kashmir General Sales Tax Act, 1962 when the entire demanded amount, in excess, had already been deducted at source and the certificates were enclosed along-with the returns filed? b) Whether the statutory requirement as laid down in clauses (b) and (c) of the 2nd Proviso to Section 11 of the Jammu and Kashmir General Sales Tax Act, 1962 can be invoked when the entire demanded amount, in excess, had already been deducted at source and the certificates were enclosed along-with the returns filed? c) Whether the Assessing Authority is justified in imposing interest and penalty under section 8(8) and Section 17(1) of the Jammu and Kashmir General Sales Tax Act, 1962 as the "Service Tax" is applicable only on execution of work and not for "carriage of Goods" as per the Jammu and Kashmir General Sales Tax Act, 1962; d) Whether the Sales Tax Tribunal, erred in dismissing the appeal merely on the basis of conjectures and surmises and has not rendered plausible reasons in not entertaining the appeal, especially when the "Service Tax" is applicable only on execution of work and not for "Carriage of Goods" as per the Jammu and Kashmir General Sales Tax Act, 1962? 5. That this Tribunal passed the order/judgment in File No. 05/ST/T/J dated February 24, 2009 titled `M/s Rajinder Goods Carriers Versus Deputy Commissioner & Anr", on September 30, 2011 and the same is within time. 6. That the applicant seeks reference to Hon'ble High Court under Section 12-D of the Jammu and Kashmir Sales Tax Act, 1962(Act No. XX of 1962) for determination on the above mentioned substantial question of law". 2. Having heard the arguments advanced at the bar it will now be pertinent to quote the entire order of this Tribunal passed in the main appeal which reads as under:- "What requires consideration is to see whether the order of the Appellate Authority can be maintained on the reasoning projected therein, i.e. whether the appellant was obliged to file proof of the payment of 20% of the assessed tax and 50% of the penalty imposed on him by the Assessing Authority, as per the requirement of clauses (b) and (c) of the 2nd proviso to Jammu and Kashmir General Sales Tax Act, 1962. In order to have a proper understanding of the matter it will be appropriate to reproduce the relevant excerpts of Section 11 of the Jammu and Kashmir General Sales Tax Act, 1962, herein below:- "Section 11:-..Provided further that no appeal shall be entertained by the said authority unless it is satisfied that:- (a) where all the returns for a year have been filed, the amount of tax due under this Act on the turnover of sales or purchases, as the case may be, admitted by the appellant in the returns filed by him or at any stage in any proceedings under this Act, whichever is higher, has been paid; or (b) Where some of the returns for a year have not been filed or no return has been filed for such year, the amount of tax due under this Act, admitted by the appellant in the returns, if any, filed by him or at any stage in any proceedings under this Act or 20% of the amount of tax assessed, whichever is higher, has been paid; or (c) in case the appeal is against the imposition of penalty, 50% of the penalty levied has been paid; [Provided that the Appellate Authority may, for reasons to be recorded in writing, stay the recovery of the disputed amount of tax and penalty. However, the stay will not cover the amount of tax and penalty payable under clauses (a), (b) and of the 2nd Proviso] Explanation:- Nothing in this sub-section shall apply to the cases where the Commissioner in exercise of the powers vested under Section 8 makes an order extending the date of payment. 3. From the perusal of the Section 11 Supra, what comes to the fore is that the deposit of 20% of the amount of tax assessed and 50% of the penalty where the appeal is against the order of imposition of penalty, is a statutory requirement. The terms of Section 11 clauses (b) and (c) are mandatory in nature as the word used is "shall". Section 11 (b) and (c) give the Appellate Authority teeth to proceed in a matter. The terms of Section 11 clauses (b) and (c) are mandatory in nature as the word used is "shall". Section 11 (b) and (c) give the Appellate Authority teeth to proceed in a matter. Filing of the proof of payment of 20% of the amount of tax assessed and 50% of the penalty levied is a condition precedent for lodging an appeal before the Appellate Authority which, as per the explanation added to Section 11, can be relaxed only where the extension of the date of payment, is granted, by an order, made by the Commissioner, in exercise of the powers vested in him under section 8 of the Jammu and Kashmir General Sales Tax Act, 1962. This has not been done in this case. This condition cannot be waived by any other means or any other Authority. It has a binding force the intention being to ensure that the appellant is prosecuting the appeal with due diligence, in good faith and with an honest intention and not for the heck of it. There thus seems to be no reason to take a view contrary to the one expressed by the Appellate Authority in her order. 4. Viewed thus for all that has been said above the order of the Appellate Authority is confirmed and the appeal of the appellant is dismissed, File shall be consigned to records after due completion. Records summoned, if any, be returned forthwith. A Copy of this Order be sent to the Learned Commissioner, Commercial Taxes headquartered at Srinagar, for his perusal and information. Announced". 5. Records summoned, if any, be returned forthwith. A Copy of this Order be sent to the Learned Commissioner, Commercial Taxes headquartered at Srinagar, for his perusal and information. Announced". 5. Considering the pros and cons required to answer this reference it will be of essence to reproduce Section 12-D of the of Jammu and Kashmir General Sales Tax Act, 1962 hereinbelow which reads as under:- 12-D. Statement of case to the High Court(1) Within sixty days from the date of communication of the order of the Tribunal, passed in appeal being an order which affects the liability of any person to pay tax or penalty or interest or to forfeiture of any sum or which affects the recovery from any person of any amount under section 12-A that person or the Commissioner, Sales Tax having jurisdiction over the whole of the State may be application in writing (accompanied where the application is made by that person by a fee of five hundred rupees) require the Tribunal to refer to the High Court any question of law arising out of such order and where the Tribunal agrees it shall as soon as may be not later than ninety days from the receipt of such application draw up a statement of the case and refer it to the High Court: Provided that the Tribunal may, if it is satisfied that the dealer or the Commissioner was prevented by sufficient cause from presenting the application within the period hereinabove specified, allow it to be presented within a further period not exceeding thirty days........." 6. The issues regarding the imposition of penalty and interest raised in the reference that were in substance in the appeal disposed of by this Tribunal could well be decided in the appeal filed before the Tribunal only after returning a finding that the appeal can be entertained. This Tribunal has held that the appeal cannot be entertained in view of the bar created by Section 11 of the Jammu and Kashmir General Sales Tax Act which makes it mandatory to deposit 20% of the Tax Assessed and 50% of the penalty levied for entertaining an appeal by the Appellate Authority. This section gives the Appellate Authority the Jurisdiction to proceed further in a matter only after such deposit. Non Compliance with the requirements of this provision scuttles the move to consider the appeal on merits. This section gives the Appellate Authority the Jurisdiction to proceed further in a matter only after such deposit. Non Compliance with the requirements of this provision scuttles the move to consider the appeal on merits. The appellant had not deposited the assessed tax and the penalty at the rates provided in Section 11 supra from the date of filing the appeal till such time that the appeal was finally disposed of by the Appellate Authority. The perusal of Section 11 makes it obvious that such deposit is a Statutory requirement. Therefore the Appellate Authority was within its jurisdiction to hold that the appeal entails dismissal and the Tribunal was right in upholding the order of the Appellate Authority. 7. In view of what has been premised above, no substantative issues of law, language and logic are involved or need to get clarified. Therefore the request made in the application, regarding reference to the Hon'ble High Court of Jammu and Kashmir is misconceived and is regarded as non est. File shall be consigned to records after its due completion. Record received by the Tribunal shall be sent back.