2003 PLP (Trib (PTD)

Date of hearing: 27th March, 2002. MIAN ABDUL QAYYUM, MEMBER (JUDICIAL).

This appeal is directed against the sales tax Order-in-Original No-182 of 2001, dated 30-1-2001 (dispatched on 8-2-2001) passed by the learned Deputy Collector (Adjudication), Multan.

2. The necessary facts giving rise to this appeal are that the Senior Auditor, Sales Tax, Multan after visit to the premises of the appellant and examination of record prepared a contravention, report to the effect that the appellant had evaded payment of sales tax of Rs.2,24,316 on 232590 Kgs. cotton seed valuing Rs.12,46,200 @ 200 per maund; had sold 462000 Kgs. cotton seed during December, 1996 and 31500 Kgs. during January, 1997 without payment of sales tax amounting to Rs.4,45,612 and Rs.30,383 respectively; the appellant supplied oil cake weighing 62125 Kgs. 41081 Kgs. and 54023 Kgs. without payment of sales tax amounting to Rs.32,453, Rs. 32,293 and Rs.42,095 during November, 1996, December, 1996 and January, 1997 respectively and thus had evaded sales tax amounting to Rs.7,00,311 on cotton seed and Rs.1,06841 on oil cake totalling Rs.8,078,152 in respect of which the warned Adjudicating Officer issued a show-cause notice, dated 21-11-2000 requiring the appellant to explain as to why the evaded amount of sales tax amounting to Rs.7,00,311 on cotton seed and Rs.1,06,841 on oil cake totalling Rs.8,07,152 be not recovered alongwith additional tax leviable under section 34 and why penal action under section 33 of the Sales Tax Act, 1990 may not be taken.

3. The appellant did not appear on any of the dates fixed by the learned Adjudicating Officer with a result that the case was decided ex parte with the following observations contained in para.4 of the impugned order:-- "I have gone through the record of the case. Since the respondents have not contested the merits of the case, despite the fact that so many opportunities were given to them. This makes it clear that the respondents have nothing to say in their defence and that the charges levied in the show-cause notice are correct on law as well as the facts. Accordingly, the charges as enumerated in the show-cause notice are held to be established. The respondents are ordered to pay Rs.8,07,152 as sales tax alongwith additional tax calculated up to the time of deposit in accordance with section 34 of the Sales Tax Act, 1990. A penalty of Rs.24,214 is also imposed upon the respondents."

4. The appeal was reported to be barred by time by the Assistant Registrar. The question of condonation of delay was considered today and has been answered in favour of the appellant and the appeal has been to be within time.

5. At the time of admission of this appeal on 10-12-2001, the learned counsel for the appellant had referred to photo copy of audit report available at page 24 of the appeal file according to which no amount of sales tax for the year 1996-97 was stated to be outstanding against the appellant.

6. The learned D.R. on 29-1-2002 requested for time so that he could verify the audit report, dated 11-3-1999 according to which no amount of sales tax for the year 1996-97 was stated to "be outstanding against the appellant but the required confirmation has not so far been provided.

7. The impugned order is admittedly an ex parte order and does not contain any reason for determination of the amount of Rs.8,07,152 as outstanding against the appellant. The learned Adjudicating Officer has held the view that default of the appellant to put in appearance during the adjudication proceedings was enough to show that the appellant had nothing to say in defence and the charge leveled in the show-cause notice was correct on law as well as on facts, and following the same view he held the charges enumerated in the show-cause notice as ,established.

8. This view of the learned Adjudicating Officer, we must say is against the law because as held by the Honourable Lahore High Court, Lahore in PLD 1998 Lah. 100 (DB) even in ex parte judgments reasons should be clearly given because aggrieved party is to attack the reasoning of the judgments, in appeal. Precisely put the legal position is that an order to be valid and binding must contain the reasons on the basis of which it has been passed and in the absence of any reason it could not be said to be a speaking order.

9. We have not been able to understand as to how can the impugned order be passed in view of audit, dated 11-3-1999 wherein it has been categorically stated that no amount on account of sales tax for the year 1996-97 was outstanding against the party. However, in order to B safeguard interests of both the parties, we set aside the impugned order and remit the case to the learned Adjudicating Officer for afresh decision in accordance with law after hearing the parties and after receiving the evidence which they may like to produce. C.M.A./736/(Tax(Trib.)?????????????????????????????????????????????????????????????????????????????????? Case remitted.