2007 PLP (Trib (PTD)

ABDUS SALAM KHAWAR, CHAIRMAN.

This order shall dispose of the preliminary objection about the maintainability and the authorization to file the above titled six appeals. Briefly contention of the appellant inter alia is that the contravention case was made out for the recovery of sales tax and submitted to the Deputy Collector (Adjudication) Faisalabad. Respective Show-cause notice were issued and cases were decided in favour of the department vide Order-in-Original, by the learned Deputy Collector (Adjudication), Faisalabad. Aggrieved of the same the appeals were preferred by the parties before the Collector (Appeal) Faisalabad. Vide -the impugned orders these appeals were accepted in favour of the present respondent and Order-in-Original passed by the adjudicating officer was set-aside. Aggrieved of the same now appeals have been preferred before this Tribunal by Collectorate of Sales Tax, Faisalabad and it has been signed by one Mr. Muhammad Tahir, Assistant Collector. At the very out set an objection has been raised about the maintainability of the appeal on the ground that the person signing the appeal was not competent to file the same, and in the absence of any proper authorization, the appeal as such was not tenable. Mr. Saleem Akhtar, Departmental Representative appearing on behalf of the appellant has maintained that the Assistant Collector was competent to file the appeals and thus the same have been validly filed. He referred to section 46(1) of the Sales Tax Act, 1990 to assert that any person including "Sales. Tax Department" could .file the appeal He adverted to the provision of section 30 of the Sales Tax Act, 1990 and maintained that for the purpose of the Sales Tax Act, the appointed officers detailed therein have been authorized to perform their duties. He maintained that the power of sales tax officers have been detailed under section 31 of the Sales Tax Act, 1990 and delegation of powers have been granted under section 32 of the Sales Tax Act, 1990. He maintained that the provision of section 46(1) stipulates that the Sales Tax Department and -not the head of Sales Tax Department only may file appeal before the Tribunal. According to him the words in a statue unless the context otherwise warrants or legislature exhibits a different intention are to be accorded the ordinary natural meanings. Reliance was placed on PTCL 1999 CL 638 CP 2001-1-L/98 SC. He also relied on a decision of this Tribunal Bench-II, Lahore wherein the learned Bench had held that airy of the officer specified under section 30 of the Sales Tax Act, 1990 could file the appeal before the Tribunal on behalf of the Collectorate of Sales Tax Department as there was no restriction of designation about officer under section 46 as laid down in section 47 of the Sales Tax Act; 1990, it' was held that the, Assistant Collector was competent to file appeal before the Tribunal.

2. Furthermore, he relied on an admitting notice in Civil Petition No.675-K of 2005 in Civil Appeal No.2036 of 2004 by the apex Court of Pakistan and also relied upon Civil Appeal No 60 of 2002 in Re-Superintendent of Customs v. S.S.L. Hayat Industry decided by the Hon'ble Supreme Court of Pakistan.

3. Conversely the learned counsel for the respondent vehemently argued that the appeals, referred above have not been filed by the competent authorized person as such were not maintainable. He maintained that only the Collector of Sales tax was authorized to file the appeal and in absence of any authorization and of powers to the subordinate, the appeal as .such was incompetent. He relied on a recent judgment passed by this Tribunal to substantiate his arguments. He referred to 2006 SCMR 129 in Directorate General of Intelligence and Investigation and others v. Al Hafiz Industry (Pvt.) Ltd.

4. The learned counsel for the respondent also pointed out that the appeals have been filed in the name of Collectorate of Sales Tax and Collector of Sale Tax but it has been signed by the Assistant Collector without bringing on record any authorization. No evidence whatsoever about the authorization has been placed.

5. I have heard the learned counsel for the respondent and perused the available record. My observations are as follows:--

6. Before proceeding further, it will be better to mention certain relevant facts. Firstly, all the above titled appeal filed in the year. 2003. Secondly these appeals have been filed by one Mr. Muhammad Tahir, Assistant Collector, Sales Tax, Faisalabad and thirdly, no authorization of any sort has been filed whereby it could be inferred that V the signatory of these appeals was duly authorized by the head CVI the department: or any competent person to file these appeals. In the Sales Tax Act, 1990, there are three provisions. One U/S 45-13 which deals with the appeal by any person other than the Sales Tax Department V aggrieved by any decision or order passed. Under sections 10, 11, 36, 45 & 66 of the Sales Tax, Act, 1990. The relevant provisions related to the appeal before appellate Tribunal contained in section 46 of the Sales Tax Act, 1990 which reads as follows:

"

46. Appeals to Appellate Tribunal.

(1) Any person including the Sales Tax Department, aggrieved by

(a) Any order passed, by the Collector under subsection (4) of section 45A the Collector of Sales Tax (Appeals) under section 45-B, and (b) Any order passed by the Board or the Collectorate of Sales Tax under section 45-A, may, within sixty days of the receipt of such decision or order, prefer appeal to the Appellate Tribunal."

7. Section 47 of the Sales. Tax Act, 1990 deals with the appeal to the High Court. According to section 47(2) of the Sales Tax Act, 1990 the appeal is to be filed by the aggrieved person or by the Collector concerned.

8. The above (hinted provision) of law were relevant at the time when, the above quoted appeals were filed before this `Tribunal. Now an amendment is section 46 of the Sales Tax Act, 1990 has been made by the Finance Ordinance Act, 2006, whereby in subsection (1) of section 46 the word "the Sales Tax Department", the word "an officer of Sales Tax" not below the rank of Additional Collector had been f substituted, thus the controversy as to who can validly file the appeal .has been laid to rest, by this amendment but as regards to the appeals filed .prior to the amendment in the Sales Tax Act, 1990, it is to be decided as to who was competent to file the appeal on behalf of the Sale Tax Department at the relevant time.

9. In the Sales Tax General Order No.4/98 bearing C.No.3(23) S.T.P./98 dated Islamabad, the 12th August, 1998, the Collectors were made responsible to receive, monitor and scrutinize each and every order-in-original, order-in-appeal, appellate order/decision of, passed by the Tribunal for the purpose determination of propriety and justification of filing of appeal under sections 45, 46 and 47 of the Act,' thus impliedly the Collectors were responsible and authorized to file the appeals.

10. The word "Sales Tax Department" has not been defined in the Sales Tax Act, 1990. Under the General Parlance, a department is apart of a large organization with a specific responsibility. The Sales Tax department thus is a part of the Central Board of Revenue dealing with the matters relating to the Sales Tax, however; department is headed by its head. According to the Secretariat Instruction issued in pursuance of Rule 5(15) of the Rules of Business, 1973 known as the Secretariat Instruction 1994, the head of department has been defined vide instructions (iii) which means "the officer who has been declared as such by government under the Fundamental and Supplementary Rules". According to the Supplementary. Rules made by the President under the Fundamental Rules that term head of department as defined". i.e. Supplementary Rule 2(10) "means any authority which the Governor General may by order declared to be head of department for the purpose of these rules"', The President of Pakistan has issued a list of officers under Supplementary Rule 2(10) declaring them to be the head of departments for the purpose of Supplementary Rules.

11. From the perusal of the aforesaid list, the Collector has been designated as the head of the (1) department of the Customs and Central Excise etc., therefore, the same analogy will be applicable to the provision of Sales Tax Act, 1990 and the Collector of the Sales Tax can only be considered as a head of Department.

12. The learned D.R. appearing on behalf' of the appellant has heavily relied on the admitting Note in Civil Petition No.6.7 K of 2005 passed by the Hon'ble Supreme Court of Pakistan. Perusal of this order shows that in this order, the Hon'ble Supreme Court of Pakistan has deal with the provisions of section 47 of the Sales Tax Act, 1990, which is quite distinct from the provisions laid down in section 46 of the Sales Tax Act, 1990. Further the D.R. relied on a judgment of this Tribunal Bench-II, Lahore in S.T.A. No.1655S/LB of 2003 in Re-Collector of Sales Tax Faisalabad v. Messrs Al-Hadid Engineering Works, Faisalabad. Mr. Saeed Akhtar learned Member (Technical) of Bench-II, Lahore who had authored this judgment, was of the view that "any of the officer, specified under section 30 of the Sales Tax Act 1990. can file appeal before this Tribunal on behalf of the Collectorate of Sales Tax, Sales Tax Department as there is no restriction of designation/ officer under section 46 as laid down in section 47 of the Sales Tax Act, 1990.

13. The similar view is taken by Mr. Muhammad Anwar Ali, Member (Technical)/Chairman of this Tribunal in appeal titled Collectorate' of Sales Tax and Central .Excise Rawalpindi v. Messrs Attock Refinery Limited Morgah, Rawalpindi in Miscellaneous Application No.38/ST/IB of 2005 in Appeal No.2292 of 2001.

14. With due respect to my learned brothers, I don't agree with their findings as no specific officer has been authorized to file the appeal before the Tribunal at the relevant time under the Sales Tax Act, 1990 as observed earlier under section 46 of the Sales Tax Act, 1990 the department could file the appeal and hereinbefore, this matter has been discussed in the preceding paragraphs. In another .judgment in Sales Tax Appeal No.L.686/04, the learned Division Bench of this Tribunal at Lahore has held that "the appeals filed by the Deputy Collector cannot be treated as appeal filed by the department", it was observed by my learned brothers that ".officers cannot be called department of the Government. They are merely functionaries appointed to exercise the powers as provided under the law, rules or regulations with a view to carry out the policy object the priorities as laid down by the department. An officer serving in a Department is not a Department and cannot have a representative capacity. Furthermore, a department is unit or branch of government, either Federal or Provincial under the political control of Minister or Secretary of the State or the Chairman of the Board". Consequently, it was held that a Deputy Collector cannot be treated as a department and the appeal filed by him was not maintainable within the frame work of section 46 of the Sales Tax Act, 1990.

15. It was argued on behalf of the appellant that the appearance of the Sales Tax Officer has been prescribed U/S 31 of the Sales Tax Act, 1990. Similarly, delegation of powers has been granted under section 32 of the Sales Tax Act, 1990. Subsection (2) of section 32 of the Sales Tax Act, 1990 provides that "unless the Board in airy case otherwise directs, the Collector may authorized any officer subordinate to him to exercise within any specified area, any of the powers of the Collector or of any other officer of Sales Tax under this Act". But no authorization or general delegation of powers giving the specific authorization to file the appeals has been given to the Assistant Collector in the absence of which, it shall be safe to presume that the Assistant Collector has not been delegated the powers of filing the .appeals before the Tribunal.

16. In view of the above, I am of the considered view that the Assistant Collector at the relevant time, was not competent to file the appeal on behalf of the Sales Tax Department. Therefore, the appeals referred above are held to be filed by un-authorized person and not maintainable within the provisions of section 46 of the Sales Tax Act, 1990 as it stood at the relevant time.

17. The appeals are hereby rejected.

18. This judgment shall also dispose of the following appeals having identical question of law and facts. Sr. No. Appeals No. Name of the Parties. No. and date of the order appealed against 01 181/03 Collector Sales Tax, Faisalabad. v. M/s Mian Ghous Buksh (Pvt.) Ltd., 3-7-2003 23-1-2003 02 183103 v. M/s Rehmani Enterprises, Faisalabad. 3-7-2003 23-1-2003 03 184/03 v. M/s Arzoo Textile Mills (Pvt.) Ltd., Faisalabad 3-7-2003 23-1-2003 04 185/03 Collector of Sales Tax, Faisalabad. Versus M/s A.T. Fabrics, Faisalabad. 3-7-2003 23-1-2003 05 1277/03 Versus M/s Saeed Textile Mills, Faisalabad. 6-8-2003 8-7-2003 C.M.A/119/Tax(Trib.) Appeal rejected.