2003 PLP 1782 (PTD)

Ss. 47 & 46

Limitation Act (IX of 1908), Ss.5 & 29(2)

Appeal before High Court was time-barred

Condonation of delay

Scope-- Provisions of S,. 5 of Limitation , Act, 1906 would not apply as period for filing appeal before High Court was prescribed under S.47 of Sales Tax Act, 1990

High Court was not empowered to condone delay unlike provisions of S.46 of Sales Tax, Act, 1990

High Court dismissed application for condonation of delay as well as appeal. Bashir Ahmad and others v. Messrs Habib Bank 1990 CLC 1105 and Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 rel. Shahzad Mazhar for Appellant. Through this appeal, the appellant challenges the order, dated 25-5-1999 passed by the Customs, Excise and Sales Tax Appellate Tribunal, Lahore.

2. The facts culminating into this appeal are that Sales Tax Audit Division, Lahore scrutinized the sales tax returns filed for the tax period 9/1997 by the appellant-company. It was detected that the appellant had deposited sales tax @ 5% amounting to Rs.67,225 whereas the actual amount due was @ 12.5% amounting to Rs.1,68,

062. A show cause notice was issued to the appellant for contravention of the provisions of Sales Tax Act, 1990. The Additional Collector Sales Tax passed an order-in-original directing the appellant to deposit Sales Tax amounting to Rs.1,00,837 alongwith additional tax (to be calculated at the time of deposit) under sections 11(1), 34 and 36 of the Sales Tax Act, 1990. A penalty of Rs.10,00,000 was also imposed under section 33(2) of the said Act. An appeal was preferred before the Collector (Appeals) who dismissed the same on 5-4-1999. A further appeal was preferred before the Customs, Excise and Sales -Tax Appellate Tribunal, Lahore which was partly allowed and the amount of penalty was reduced to Rs.2000.

3. The learned counsel for the appellant at the very outset submitted that the instant appeal was barred by time but he urged that the impugned order was nullity in the eye of law as such no limitation runs against a void order and the appeal should be decided upon its merits. He Submitted that the Appellate Tribunal in an earlier order, dated 16-5-1998 had held that disposable syringes were not "drugs" and being so were specifically covered under Seventh Schedule.

4. We are afraid the contention of the learned counsel is devoid of any force. Two orders have been passed by two different Benches of the Tribunal. The question of disposable syringes does not find mention in the impugned order. Question of refund and the output tax is involved in the- instant case. The order passed by the earlier Bench was not brought to the notice of the Bench who passed the impugned order. Even otherwise two different views taken by the two different Benches, of the Tribunal do not make the latter order void. Section 29(2) of Limitation Act; 1908 provides that where any special or local law prescribes a period of limitation, the provisions of section 5 of the Limitation Act, 1908 are not applicable. See. Bashir Ahmad and others v. Messrs Habib Credit and Exchange Bank Ltd. Bank (1990 CLC 1105) and Allah Dino and another v. Muhammad Shah and others (2001 SCMR 286). In the instant case period of 60 days has been prescribed under section 47 of the Sales Tax Act, 1990. Unlike the provisions of section 46 of the High Court has not been empowered to condone the delay. Since section 5 of the Limitation Act, 1908 is not applicable to the facts of the instant case, the application C.M. No.2 of 1999 is misconceived and is dismissed. For the aforementioned reasons the appeal being barred by time is dismissed in limine. S.A.K./R-224/L Appeal dismissed.