2011 PLP (Trib (PTD)

This order shall dispose of an appeal filed by the appellant-registered person against Order-in-Appeal Nos. 2576-2580 of 2008 dated 29-5-2008 passed by the learned Collector of Customs, Excise and Sales Tax (Appeals), Faisalabad.

2. Brief facts of the case in detail are that the appellant-registered person is a manufacturer-cum-exporter engaged in making of textile goods claimed refund of input tax amounting to Rs.172,089 incurred in connection with zero-rated supplies for October, 2005. The registered person was however issued a show-cause notice bearing C.No. 25454 dated 17-11-2007 that as to why refund claimed may not be rejected under section 11(2) read with Rule-37 of Sales Tax Rules, 2006 (Refund Rules) notified vide S.R.O. 555(I)/2006 dated 5-6-2006.

3. Upon culmination of adjudication proceedings, the learned Assistant Collector, Faisalabad rejected appellant's refund claim on ex parte basis without affording the appellant with any opportunity of hearing and passed Sales Tax Order-in-Original No. 1222 of 2008 dated 10-1-2008. Being aggrieved and dissatisfied by the order of adjudicating authority, the registered person assailed the order-in-original by filing of appeal before Collector (Appeals), who dismissed the same as (time-barred) by 27 days in terms of section 45B of the Sales Tax Act, 1990.

4. Learned AR, appearing on behalf of the registered person vehemently contented that the adjudication proceedings carried out on back of the appellant are in flagrant disregard of the law in as much as the impugned adjudication order was passed without providing the appellant with any opportunity of being heard ex-facie violative of the principles of natural justice. As such the charges levelled in the impugned show-cause notice were never confronted by the appellant therefore; all the subsequent proceedings initiated on their back are nullity in the eye of law. Learned AR further argued that order passed by the learned Assistant Collector on ex parte basis is an illegal and void order and there runs no limitation against a void order which is non-existent in the eyes of law. In support of his contention, the learned AR relied upon the reported judgments of the superior judiciary.

5. On the other hand, the learned DR failed to put-forth any explanation to justify any deviation from the judgments cited by the A.R. She has however, simply supported the impugned orders.

6. We have carefully perused the available case record and have also anxiously considered the written as well as oral submissions made by the learned counsel for the rival parties.

7. Without prejudice to above, admittedly, the learned adjudicating authority has decided the case on ex parte basis without providing the appellant-registered person with any opportunity of being heard which is not only against norms of natural justice but also contrary to provisions of the Sales Tax Act, 1990; as the cardinal principle of "Audi Alterant Partem i.e. No body should be condemned unheard" has not been observed. Maxim (audi alteram partem) should be deemed to be a part of every statute by express words or by necessary implication in statute. It is a well-settled principle of natural justice that no court should adjudicate upon a right, of party who was not before it or to whom no notice was given and thus an ex parte order will be no order in eye of law. Maxim of "audi alteram partem" i.e. no one should be condemned unheard, is a universally established principle of natural justice which is applicable to both judicial and non-judicial proceedings.

8. In somewhat similar situation, the honourable Supreme Court of Pakistan in case of "Mirza Aslam Beg and another v. Saghir Iqbal" reported as (PLD 1988 SC 24) has laid down as under:-- "It is settled principle of law that no one can be condemned unheard. This principle is to be read into the relevant law unless its application is excluded by express words. The duty is cast even to the administrative Tribunals what to talk of the 'Courts' to act fairly and with due regard to the principles of natural justice unless specifically exempted from such limitation. It would, therefore, follow that an order affecting the rights of a party cannot be passed without giving an opportunity of hearing to that party. As said earlier, the right 'to be heard' is not confined to the proceedings which are judicial in form. In fact, the maxim `no man shall be condemned unheard' to all proceedings which affect the person or property or other rights of the parties concerned in dispute. An order passed without affording an opportunity of hearing to a party affected cannot be considered a valid order in the eyes of law. In the instant case for the reasons recorded above, it appears that no opportunity was afforded to the appellant to advance arguments before announcing the judgment and it can safely be said that he has been condemned unheard":

9. The legislature being cognizant of this principle has incorporated the same in various provisions of the Sales Tax Act, 1990, relating to adjudication cases. No order affecting rights of a person should be passed without providing him opportunity of being heard. The judgment of the honourable Sindh High Court, Karachi in case of "Messrs Siemens Pakistan Engineering Company Ltd., v. Pakistan and others" cited as (1999 PTD 1358) is also attracted in the instant case that:-- "Officer before passing an order which would adversely affect rights of a party; should hear that person's explanation, clarification and argument in his defence submitted by him personally or through his counsel or his duly authorized agent. If such hearing is not given to person concerned, the order would be in violation of not only principles of natural justice but also of statutory requirements and consequently would be invalid.'`

10. We are in agreement with the contentions of the learned AR that a person against whom any action warranted under law is not properly heard to confront the charges levelled against him and he is not proper undergone by due process of adjudication as consciously enacted by legislation in various laws particularly in fiscal statutes, any order passed subsequent to it will be a illegal and void order therefore, no time limitation would run against it as also held by the honourable Supreme Court of Pakistan in judgments cited as 2005 SCMR 69 and (2007 SCMR 729) that; "No limitation runs against a void order".

11. We also deem appropriate to mention here that in the recent past i.e. on 16-4-2010, in respect of the same appellant, this Court also dilated upon similar controversy of late filing of appeal in S.T.A No.171/LB of 2009 dated 16-4-2010 by holding that; "the refund, if finally determined is the money of a registered person, which could not be denied to him on merely technical grounds".

12. In view of what has been discussed above, we are of the considered view that both the orders of lower fora are illegal, hence, set aside and the case is remanded back to the authority having jurisdiction with directions to provide the appellant an ample opportunity of being heard and to pass a fresh and speaking order after examining supporting documents to be produced by the appellant before him. The registered person is directed to appear before the adjudicating authority with one month from receipt of this order, who shall issue process refund within 60 days from the day of submission of supportive documents. Appeal is disposed of as above. C.M.A./212/Tax(Trib.) Order accordingly.