2003 PLP (Trib (PTD)

MIAN ABDUL QAYYUM MEMBER (JUDICIAL)‑‑‑This appeal is directed, against the Sales Tax Order‑in‑Original No. 12 of 2002, dated 7‑1‑2002 (dispatched on 18‑1‑2002) passed by the learned Additional Collector (Adjudication), Multan.

2. Brief facts leading to this appeal are that the Assistant Collector (P&A), Multan reported that the appellant determined tax liability but did not deposit the same. The relevant details as given in para. 1 of the impugned order as under:‑‑‑ Name of the Registered Person Period Amount Payable Amount Paid Amount Short Paid Date of Return Filing J.D. W. Sugar 7/2001 6,425,084 100000 6,325,084 15‑8‑2001 Mills, R.Y. Khan

3. A contravention report was forwarded to the learned Adjudicating Officer who charging the appellant with violation of sections 26, 26A, 26AA and 2(9) of the Sales Tax Act, 1990 required it to explain as to why the sales tax amounting to Rs.63,25,084 alongwith additional tax under section 34 of the Sales Tax Act, 1990 may not be recovered and why penal action under section 33 of the Act (ibid) may not be taken. The appellant submitted reply to the show‑cause notice but did not attend the hearings on 27‑12‑2001 and 7‑1‑2002. The request by Mr. Ijaz Ahmad Awan, Advocate for an adjournment was declined and the learned Adjudicating Officer decided the case on the basis of written reply furnished by Mr. Muhammad Rafique, G.M. Finance, dated 21‑12‑2001 and held the appellant responsible to pay the short paid amount. It was further directed that the amount claimed to have been deposited by the appellant may be excluded from the adjudged amount. The Collectorate was also advised to calculate the amount of additional tax as required under section 34 of the Act (ibid) and recover the same. A penalty equal to 3% of the principal amount was also imposed under section 33(2) of the Act (ibid).

4. The learned D.R. has confirmed this fact on 26‑3‑2002 that out of the short paid amount of Rs.63,25,084 an amount of Rs.62,38,065 was paid by the appellant and that an amount of Rs.87,019 was yet to be paid besides the amount of additional tax and penalty adjudged through the impugned order.

5. The learned counsel for the appellant placed on record photocopy of letter, dated 20‑12‑2001 issued by the learned Member, Sales Tax, Central Board of Revenue, Islamabad according to which the Board has allowed the Sugar Mills owners to clear their past tax liability in three equal instalments first of which was to be paid in December, 2001 and the last in February, 2002.

6. Learned counsel for the appellant on the basis of the aforesaid letter requested for remission of entire amount of additional tax and penalty.

7. The learned D.R. has opposed this request on the ground that the appellant had already received the amount of sales tax at the time of issuing the invoices and the same amount was held by it as a trust to be deposited into Government Treasury alongwith next sales tax return. He was of the view that there was no justification for remission of additional tax and penalty. According to him, if the additional tax and penalty were remitted then it would amount to allowing premium on an absolutely wrong and illegal act of the‑appellant who had withheld payment of the amount of sales tax although the same was collected on behalf of the Government for being deposited in the treasury.

8. We have considered the view point of both the parties and have also examined the record.

9. In order to appreciate the contentions of two sides we will first try to understand as to what is sales tax? How it is calculated, by‑whom and who is to deposit the same? What is additional tax and when it is leviable? What is penalty and when it is imposed?

10. Sales Tax has been defined in section 3 of the Sales Tax Act, 1990 which is known as the charging section. According to this section, sales tax is charged, levied and paid @ 15% of the value of taxable supply made in Pakistan by a registered person in the course of furtherance of any "taxable activity" carried on by him. In case the taxable supply is made in Pakistan to a person other than a registered person then further tax @ 3% of the value in addition to the rate specified in subsection (1) of clause (a) of subsection (2) and sub sections (4) and (5) shall be levied, charged and paid (section 3‑1a).

11. A registered person making taxable supply is to issue a serially numbered tax invoice at the time of supply of goods containing particulars given in section 23 of the Act, clause (f) of which is in respect of the amount of sales tax.

12. A registered person .is to file the sales tax return in terms of section 26 by the due date which has been defined in clause (9) of section 2 of the Act (ibid) as 15th day of the month following the end of the tax period. The sales tax return as per rule 2(iv) of the Filing, of Monthly Returns Rules, 1996 means sales tax return cum‑payment challan which is to be in form of Annexure A of the said Rules.

13. In the instant appeal, the examination of the sale tax return‑cum -payment challan for the period of July, 2001 shows that value of taxable goods excluding tax was Rs.3,56,94,915 on which sales tax @ 15% was Rs.53,54,237 and sales tax @ 3% was Rs.10,70,

848. Both the supplies were made to unregistered persons and .the total tax due was Rs.64,25,085 out of which an amount of Rs.1,00,000 was deposited on 15‑8‑2001 at the time of filing of tax return leaving on outstanding balance of Rs.63,25,086 on account of sales tax.

14. Now we have the answer to the question raised above that this amount of outstanding sales tax of Rs.63,25,086 for July, 2001 had been collected by the appellant in July, 2001 and it was the appellant who had to pay the same by 15‑8‑2001 at the time of filing the return in respect of end of tax period of July, 2001. Out of this outstanding balance of Rs.63,25,084 the appellant paid Rs.62,38,065 on 11‑12‑2001 still leaving an outstanding balance of Rs.87,019.

15. We now proceed to discuss the next issue which is in respect of additional tax. Additional tax has been defined in section 34 of the Act (ibid) as under:‑‑‑ "

34. Additional Tax.‑‑‑(1) Notwithstanding the provisions of section 11, if a registered person or enrolled person does not pay the tax due or any part thereof in time or in the manner specified under this Act, rules or notification issued thereunder or claims a tax credit, refund or makes an adjustment, which is not admissible to him, or incorrectly applies the rate of zero per cent to supplies made by him, he shall, in addition to the tax due, and the prescribed penalties, pay additional tax at the rate of two per cent of the tax due per month or any part thereof. (2) For the purpose of calculation of additional tax. (a) in the case of inadmissible input tax credit or refund, the period of default shall be reckoned from the date of adjustment of such credit or, as the case be, refund is received; and (b) in the case of non‑payment of tax or part thereof, the period of default shall be reckoned from the 16th day of month (following the due date of the tax period to which the default relates) to the day preceding the date on which the tax due is actually paid. Explanation.‑‑‑For the purpose of this section tax due does not include the amount of penalty."

16. The earlier section 34 was amended vide Finance Act, 1996 (IX of 1996) whereby the provisions imposing different rates of additional tax of 5%, 10% and 100% of the sales tax due during the first month or part thereof, for the next month or part thereof and for the succeeding period respectively alongwith the provision regarding surcharge were taken back and a uniform slab @ 2% of the tax due per month or any part thereof was introduced. Another important amendment brought in this section was that the word "shall be liable to pay" were changed with the words "shall pay" and the words "fails to pay" were substituted with the word "does not pay".

17. The question of interpretation of the words "shall be liable to pay" came up for consideration before the Hon'ble Lahore High Court, Lahore in judgment reported in 1995 PTD

91. The facts of the case in Writ Petition No.25/10/93 decided by the Hon'ble High Court in the reported judgment were that the sales tax payable in respect of production of Malt‑97 for the month of April, 1991 amounting to Rs.49,157 was deposited under a wrong head of account relating to Central Excise Duty. On a notice, dated 12‑6‑1991, calling upon to explain its position, `writ petitioner in reply stated that it was on account of typographical mistake that wrong head of account was mentioned which may be rectified. The department, however, insisted that a fresh deposit of amount of tax payable be made. The writ petitioner on 7‑8‑1991 deposited another amount of Rs. 49,157 as sales tax where-after another notice, dated 10‑8‑2001 was received requiring the writ petitioner to deposit additional tax on account of late payment of sales tax as required by section 34 of the Sales Tax Act, 1990. This notice was also resisted on the ground that since the first deposit was made within time although under wrong head no account of an inadvertent error, therefore, there was no failure on the part of the petitioner to pay the tax due and no additional tax was payable. The plea was not accepted by the Superintendent who on 3‑8‑1992, issued yet another notice requiring to show cause as to why penal action be not taken for non‑payment of additional tax. The writ petitioner once again reiterated his earlier stand that the tax had already been paid within time and that no additional tax was payable. The Deputy Collector, however, directed the writ petition vide order, dated 3‑12‑1992 to deposit additional tax in the terms of section 34 of the Sales Tax Act, 1990 holding that since the deposit was not made in the proper head of account, therefore, the writ petitioner was liable to pay additional sales tax in terms of section

34. The appeal was dismissed by the Collector.

18. The question which arose before the Hon'ble Supreme was as to whether the view taken by the Collector that as the deposit was not made in the proper head of account it amounted to valid deposit of the tax or not and it was in this connection that the Hon'ble High Court in para. 9 of the judgment made pertinent observations which are re‑produced for facility of reference:‑‑ "On the plain language of this provision it is apparent that liability to pay sales. tax is not a necessary consequence or corollary of non‑payment of sales tax within the stipulated period. On the other hand, use of expression `shall be liable' in contradistinction to "shall pay" clearly vests a discretion in the Adjudicating Officer to levy or not to levy additional sales tax even in the event of failure of a person to pay the sales tax keeping in view the Acts and circumstances of the case and reason for non‑payment. "

19. The Hon'ble High Court in para. 12 made further observations to the effect that imposition of additional tax under section 34 of the Sales Tax Act, 1990 was in the discretion of the Deputy Collector who unfortunately was not aware of this jurisdiction vested in him and proceeded in the matter under a misconception that he was obliged by law to recover sales tax merely because according to him the sales tax has not been paid within the due period; this approach on the part of the Deputy Collector was clearly erroneous and that he was obliged in law to examine the reasons stated by the petitioner as to why it could not be deemed to be defaulter. Ultimately the Hon'ble High Court concluded that since the petitioner had deposited the sales tax within the due period although under a wrong head of ,account on account ‑6f an inadvertent error, therefore, it could not be said that he had deliberately avoided to pay the sales tax or was a defaulter. Resultantly, it was held that the petitioner before the Hon'ble High Court was not liable to pay additional tax. The writ petition was allowed and the impugned order was declared to be without lawful authority.

20. A careful recading of this esteemed authority shows that the words "shall be liable" are different then the words "shall pay"; that the words "shall be liable to pay" vest a discretion in the Adjudicating Officer to levy or not to levy the additional sales tax even in the event of failure of the person to pay the sales tax keeping in view the facts and circumstances of the case and reasons for non‑payment.

21. The Court followed this judgment and allowed appropriate relief keeping in view facts of each case, but now the Legislature has brought about a change in section 34 of the Sales Tax Act, 1990 and the amended section has been re‑produced above wherein the words "shall be liable to pay" have been substituted with the words "shall pay" which prima facie means that no after the amendment introduced by the Finance Act, 1996, Adjudicating Authority has no jurisdiction or discretion in the matter of imposition of additional tax which the defaulter shall pay as a consequence of non‑payment, short payment or late payment of the sales tax due. This view finds support from a judgment reported as 1999 PTD 1308 (DB) by the Hon'ble Sindh High Court, Karachi Bench. The relevant observations contained in para. 9 are as under:‑‑ "Evidently, the words `liable to pay' have been substituted by the word `pay' and there would have been force in the contention of the learned counsel for the respondents if the above provisions were applicable at the relevant time. However, they cannot, nor they were intended to, be given retrospective effect and the Legislature is presumed to be aware of the state of law as existing at the time of enactment of statute. This fact also lends support to the contention of the learned counsel for the petitioner and we accordingly hold that prior to the 1996 amendment additional tax could only be levied if the concerned authorities were satisfied that there was some deliberate act on the part of the tax‑payer to evade payment."

22. In a recent judgment, dated 19‑9‑2001 passed in the Customs Appeal No.4 of 1998 by the Hon'ble Lahore High Court, Lahore while discussing the effect of a notification issued by the Board under section 181 of the Customs Act, 1969, it has been observed that "an order issued in accordance with law by the C.B.R. under anyone of the two provisions can be read as part of section 18 and has the force accordingly". (Para. 8 at page 6).

23. In para. 9 at page 7, it has further been observed that "an order issued under section 181 as noted above is neither an instruction of the C.B.R. nor it is meant on the administrative side".

24. In the same para. at the same page while discussing the effect of sections 219 and 223 in the context of section 181 it has been laid down that "the power vested in C.B.R. under section 181 though apparently similar to one vested in it under section 219 (Power to make rules) is nevertheless clearly distinctive. Firstly it is not subject to the conditionalities of section

219. Secondly under section 181 the Board exercises a power to make an order which by reason of its specific mention in the body of provision, stands at a higher pedestal than a rule framed under section

219. Once an order is validly made, it partakes the colour and credibility of statutory instrument.

25. In para. 10 at page 8 it has been held that "an order issued by the C.B.R. under section. 181 is binding upon the appropriate officer directing confiscation of goods. It is binding both when it specifies the goods where such option is not to be given as also when it fixes the amount of fine which in lieu of confiscation is to be imposed".

26. Considering the powers of the Tribunal under section 194‑A it has been held in para. 10 at page 9 that "although the appellate jurisdiction of the Tribunal under section 194‑A has been couched in all embarrassing terms and words, nevertheless, being a creature of statute it cannot travel beyond the statute to declare directly or indirectly any of the provisions to be illegal or inapplicable where these are clearly attracted. In the same para., it was held that the "Tribunal could not directly or indirectly allow a relief which the appropriate officer could not give to an assessee and that the Tribunal being a forum of limited jurisdiction could not have declared notification issued under section 181 to be illegal".

27. The Hon'ble High Court ultimately at page 11 in para. 12 concluded as under:‑‑ "A question may arise here if the provisions to section 181 make part of the jurisdiction of the Tribunal conferred under section 194‑B as redundant. The answer is no. The Tribunal will still have the jurisdiction to rule if the goods were liable to be confiscated for the reasons given by the appropriate officer. However, once the Tribunal comes to the conclusion that the goods were liable to be confiscated, it cannot interfere with the impugned order of the appropriate officer made in the light of an order by the Board specifying the goods or class of goods where option of payment of fine is not to be given. In other words where the appropriate officer has refused to‑allow option in view of an order of the Board made under the provisos, the Tribunal cannot allow that option is the same token where an appropriate officer imposes line as fixed by the C.B.R. the Tribunal cannot reduce the same any further. It is so .for the reason that the order of the Board made in this regard has the force of the statute. As said above even this Court under section 196 of the Act will not allow a relief which is opposed to the Board though on Constitutional side that order may very well be struck down for any conceivable legal infirmity."

28. The legal position that emerges now is that earlier to amendment introduced in section 34 of the Sales Tax Act, 1990 vide Finance Act, 1996 (IX of 1996), since the expression used was "shall be liable to "pay", therefore, imposition of additional tax was not a necessary consequence or corollary of non‑payment of sales tax within time but it was subject to determination of the liability to pay additional tax on the basis of discretion vested in the appropriate officer, who was to adjudge the same keeping in view the facts and circumstances of each case explaining the cases of delayed payment of the sales tax but after the substitution of the words "shall pay" for the words "shall be liable to pay" the position has under gone a material change and the element of discretion of the appropriate officers appears to have been taken away and the imposition of additional tax has become a necessary and automatic legal consequence resulting from belated payment of sales tax the Legislature in its wisdom has changed the law and wisdom of the Legislature cannot be questioned before the forum which does not have any jurisdiction to strike down this amendment because it has no inherent supervisory, suo motu or Constitutional jurisdiction.

29. It appears that after amendment of section 34 vide Act IX of 1996, the Government felt the necessity of granting the power in respect of exemption from penalty and additional tax to some authority instead of the appropriate officer whose discretion was taken away with change of words "shall be liable to pay" to "shall pay". The Government, therefore, introduced section 34‑A vide Act I of 1999 effective 1‑12‑1998 which reads as under:‑‑ "34A. Exemption from penalty and additional tax. ‑‑‑The Federal Government or a person duly authorized by the Federal Government in this behalf may, for reasons to be recorded in writing by notification in the official Gazette, exempt any person or class of persons from the payment of the whole or part of the penalty and additional tax imposed under sections 33 and 34 subject to such conditions and limitations as may be specified in the notification. "

30. This section has now been substituted by the Finance Ordinance, 2001 (XXV of 2001) and the newly substituted section 34‑A reads as under:‑‑ "34A. Exemption from penalty and additional tax.‑‑‑The Federal Government may, by a notification in the official Gazette, or the Central Board of Revenue by a special order published in Gazette for reasons to be recoded in writing. exempt an person or class of persons from payment of the whole or part of the penalty and additional tax imposed under sections 33 and 34 subject to such conditions and limitations as may be specified in such notification or, as the case may be, special order."

31. After having examined the facts of the case with reference to the different relevant provisions of law and the judgments of Hon'ble Lahore and Sindh High Courts, we have come to the conclusion that after amendment of section 34 of the Sales Tax Act, 1990 vide Finance Act No. IX of 1996, the Appropriate Officer now does not have any discretion in the matter of waiving of additional tax. Once he comes to the conclusion that the sales tax due has not been paid or has been paid late, then the imposition of additional tax is automatic. This Tribunal being a creature of statute too has no jurisdiction to allow relief to an assessee which the appropriate officer could not grant in view of the express provisions of section 34 of the Sales Tax Act, 1990. This Tribunal however, can examine the question of the levy of sales tax and if it comes to the conclusion that the sales tax was not leviable at all then it can examine the question of imposition of additional tax and penalty and allow appropriate relief. The Legislature has inserted section 34‑A which confers authority on the Federal Government to issue notification in the official Gazette or the Central Board of Revenue to issue a special order for reasons to be recorded in writing to exempt any person or class of persons from payment of the whole or part of the penalty and additional tax imposed under sections 33 and 34 subject to such conditions and limitations as may be specified in such notification or as the case may be, in the special order.

32. This is too well‑known a proposition of law to require any elucidation that a power vested in any authority can only be exercised by that authority and by none‑else and that exercise of that owner by any other authority would become without jurisdiction, illegal, void ab initio and of no legal effect. We would in fact go to the extent of saying that if this power conferred upon the Federal Government and the Central Board of Revenue by virtue of section 34‑A of the Sales Tax Act, 1990 is exercised by this Tribunal except in case where the very levy of the sales tax was illegal, it would amount to usurpation of power which is unwarranted by law.

33. Now we come to the question of penalty. This expression in ordinary parlance means punishment, such as imprisonment, a fine etc. imposed for wrong doing, breaking a contract or rule, etc. It also means a punishment that one brings on oneself through ill‑advised action. It has also become proverbial to say that "he paid the penalty for his error." The facts of the instant case adequately demonstrate that the appellant had collected the sales tax on behalf of the Government at the time of supply to unregistered persons, issued an invoice incorporating the amount of sales tax collected by it, had held this amount as trust on behalf of the Government but instead of discharging its liability by depositing it in the Government Treasury at the time of filing of the return by 15th of the next month, utilized the amount of sales tax else where and has now pleaded or remission of addition tax and penalty. We find no moral, ethical or legal justification for waiving off the additional tax or penalty because according to our view the sales tax was rightly leviable which the appellant collected from the customers but did not deposit in the Government Treasury.

34. The argument that since the Member, Sales Tax had allowed the appellant to clear the past liability in instalments does not in itself amount to a special order which is required to be issued in case the Central Board of Revenue decided to waive off additional tax and penalty imposed against the appellant through the impugned order.

35. The appeal is without any merit. This judgment will also apply to Appeals Nos.275 of 2001 and 53 of 2002, the facts of which are given below:‑‑ S.T.A. No.2752/LB of 2001. Messrs Fecto Sugar Mills Limited. v. (1) Collector of Sales Tax and Central Excise, Faisalabad. (2) Additional Collector Sales Tax and Central Excise (Adjudication), Faisalabad. Appeal against the sales tax Order in Original No.89 of 2001, dated 20‑10‑2001 (dispatched on 29‑10‑2001) passed by the learned Assistant Collector (Adjudication), Faisalabad. (2) The appellant filed return for the month of May, 2001 but short paid an amount of Rs.74,89,802 out of which an amount of Rs.23,00,000 paid on 22‑6‑2001 leaving recoverable balance of sales tax of Rs.49,89,802 in respect of which the appellant was issued a show‑cause notice requiring it to explain its position as to why the short paid amount of Rs.49,89,802 be not recovered alongwith additional tax and why penal action be not taken. (3) In reply to the show‑cause notice the appellant admitted short payment but pleaded for sympathetic consideration in view of the fact that the entire sugar industry was facing financial problem on account of import of refined sugar from India since early March, 2001 in spite of ban on such import. A request for payment of the short paid amount in three instalments beginning November 2001 was also made. (4) The learned Adjudicating Officer after considering reply to the show‑cause notice and hearing Muhammad Younas Khan, Technical Manager of the appellant held the appellant liable to pay the short paid amount of Rs.49,89,802 alongwith additional tax under sections 34 and 36 of the Sales Tax Act, 1990. A penalty equal to 3% of the tax involved was also involved under section 33 of the Act (ibid). Regarding request of the appellant to pay the short paid amount through instalments, it was directed that the appellant may approach the learned Collector, Sales Tax, Faisalabad who was the competent Authority in the matter. (5) Malik Muhammad Arshad, Advocate learned counsel for the appellant on 12‑3-2002, during the course or arguments submitted that the entire amount of Rs.49,89,802 adjudged as payable on account of sales tax has since been paid by the appellant as under:‑ "Amount Date of payment Rs.15,89,802 13‑2‑2002. Rs.15,00,000 8‑1‑2002. Rs.19,00,000 20‑l2‑2001.'' (6) He also placed on record photo copies of sales tax returns‑cum- payment challans. (7) The learned D.R. confirmed the fact of payment of the principal amount of,Rs.49,89,802. (8) Since the short paid amount of sales tax of Rs.49,89,802 has been paid, therefore, we are now left with the question of payment of additional tax and penalty. (9) Learned counsel for the appellant submitted that since the principal amount has already been paid, therefore, the additional tax and penalty imposed by the learned Adjudicating Officer may be waived as is being done by Bench‑I. To our enquiry, the learned counsel admitted that the short paid amount of sales tax was collected by the appellant but was not deposited on account of slump in the market. (10) The learned D. R. has opposed the request of the learned counsel for the appellant regarding remitting additional tax and penalty which according to him have rightly been levied keeping in view the provisions of sections 34 and 33 of the Sales Tax Act, 1990. S.T.A. No.53/LB of 2002. Messrs Adam Sugar Mills Limited. v. (1) Assistant Collector (P&A), Sales Tax Collector, Multan. (2) Additional Collector (Adjudication), Customs, Central Excise and Sales Tax, Multan. Appeal against the sales tax Order in Original No. 1593 of 2001 and 4‑12‑2001 (dispatched on 7‑12‑2001) passed by the learned Additional Collector (Adjudication), Multan. (2) The appellant submitted sales‑tax return for June, 2001 in which the tax liability was determined at Rs.1,62,32,831 out of which Rs.62,32,831 were paid leaving a balance of Rs.1,00,00,000 as short paid in respect of which the appellant was charged with violation of sections 2(9), 3, 6, 7, 26, 26A, 26AA and 34 of the Sales Tax Act, 1990, and was called upon to explain as to why the amount of short paid sales tax alongwith additional tax may not be recovered, and why penal action may not be taken. (3) Mr. Muhammad Iqbal Dawood, representative of the appellant appeared before the learned Adjudicating Officer on 4‑12‑2001 and submitted written reply claiming therein that the short paid amount had already been paid alongwith the additional tax in seven instalments. He also furnished photocopies of sales tax returns‑cum‑payment challans showing payment of short paid amount of sales tax alongwith additional tax. The learned Adjudicating Officer decided the case with the following observations contained in para. 3 of the impugned order:‑‑ "Hearing in this case was fixed on 4‑12‑2001, Mr. M. Iqbal Dawood appeared from defence and submitted written reply and contested that they had already discharged the full liability of their outstanding arrears of sales tax alongwith additional tax for the month of June, 2001 in seven instalments. He also submitted the photocopies of sales‑tax return‑cum‑payment challan showing the payment of arrears. In the light of their admission to pay the outstanding the charges as enumerated in the show -cause notice stand established. Therefore, Collectorate of Customs, Sales Tax and Central Excise, Multan is advised to confirm the payments made by the respondents. In case of any outstanding, dues the same should be recovered. Additional sales tax as required under section 34 of the Sales Tax Act, 1990 may also be calculated and recovered from the party, however, the additional sales tax as required under section 34 of the Sales Tax Act, 1990 may also be calculated and recovered from the party, however, the additional sales tax involved on the principal amount in this case already paid, may be excluded from the total liability of additional sales tax. For violation of provisions of Sales Tax Act, 1990, a penalty of 3% (three per cent) of the principal amount is also imposed under 'section 33(2) of the Sales Tax Act, 1990. " (4) Malik Muhammad Arshad learned counsel for the appellants has submitted that since the principal' amount alongwith additional tax was paid though late, therefore, it was not a case which would attract imposition of penalty, He has requested that the amount of penalty may be waived as the appellant could not make payment in time on account of slump in the market and for the reason that the amounts from the purchases were received late. (5) The D.R. has defended the impugned order and has requested for, maintaining the penalty.

36. The resume of the facts of these appeals, show that the amount of sales tax was collected by the appellant but the same was not deposited in the Government Treasury within the prescribed period for which no one else is to be blamed except these two appellants who cannot seek any indulgence for the their lapse and default and for the reasons stated under Appeal No. 177 of 2002, we find no merit in these appeals either which are dismissed alongwith Appeal No. 177 of 2002. S.A.K./5Q7/Tax (Trib.) Appeals dismissed.