2008 PLP 836 (CLC)

NADEEM AZHAR SIDDIQI, J.

The learned counsel for the J.Ds. Nos.2 and 3 has placed on record the photocopy of the order, dated 1-8-2007 and submits that by passing order, dated 1-8-2007 the directions contained in the judgment, dated 7-9-2006 and decree, dated 12-2-2007 have been fully complied with and the execution has served its purposes. The learned counsel for the D.H. submits that the Collector of Custom (Sales Tax, Central Excise) Adjudication-III has decided three appeals vide separate order, dated 26-2-2004 by which the department was directed to examine/consider/sanction refund claim of the D.H. within the parameters of law and prevalent practice. He further submits that the order, dated 1-8-2007 is based on the pleas which were already rejected by the Collector Adjudication vide order, dated 26-2-2004 and the order, dated 1-8-2007 is not in compliance of the judgment and decree as well as order, dated 11-5-2007 passed in the execution application. He further submits that D.H. has no other remedy available under the law and the order, dated 1-8-2007 can be examined in this execution application to the extent whether the said order, dated 1-8-2007 is infirmity with the direction issued vide order, dated 7-9-2006. In reply Mr. Mohsin Imam submits that vide order, dated 7-9-2006 only direction issued to the department was that refund claim may be examined/considered/sanctioned within the parameters of law and prevalent practice. He has referred three orders and submits that there is no specific order for refund of sale tax and since the suit was disposed of in terms of order of Collector (Adjudication) the refund cannot be made. I have heard the learned counsel for the parties and considered their submissions. This execution application has been filed for the implementation of the order, dated 7-9-2006 the operative part of which is read as under:

"In view of the above, Mr. Khalid Jawed Khan requests that the suit may be disposed of with direction to the Collector Sales Tax to refund to the plaintiff the amount of Sales Tax as ordered in Departmental Appeals Nos.6 of 2004, 7 of 2004 and 8 of 2004. Order accordingly." By that order the suit was disposed of with the direction to the Collector Sales Tax to refund to the plaintiff amount of sales tax as ordered in the departmental appeals. I have also perused the order passed in the Departmental Appeals Nos.6 to 8 of 2004. The operative part of which is read as under: "I, further, direct that the refund claim of the appellant may be examined/considered/sanctioned within the parameters of the law and prevalent practice." From the perusal of the above operative part it appears that there is no specific direction for refund of the sale tax and the direction was only to examine/consider/sanction the sale tax within the parameters of law and prevalent practice. After order, dated 11-5-2007 passed in the execution the Deputy Collector, Refund Group-IX has passed an order, dated 1-8-2007 which has now been placed before the Court. Vide that order the claim of D.H. in respect of the refund of the sale tax has been rejected. The operative part of the said order is reproduced as under:-- "I, therefore, find no reason to interfere with the orders-in- original already issued insofar as the objection of blacklisting/registration suspension is concerned. On fresh replication of the claims, the objections still stand and no evidence has been provided to overrule the objection raised by the automated system. The matter is, therefore, disposed of by rejecting the entire refund amount of Rs.6,951,941 filed by the claimants for the above stated tax periods in light of reasons explained above." By passing the order, dated 1-8-2007 the order, dated 1-8-2007 the (sic) orders dated 7-9-2006 and 11-5-2007 have been substantially complied with. The question whether the order was passed rightly or wrongly, cannot be undergone in this execution application and the order, dated 1-8-2007 can only be assailed before other forums provided under the relevant law. In view of the above, this execution application is disposed of. The decree-holder is at liberty to assail order, dated 1-8-2007 in accordance with law. In view of the order passed above, the learned counsel for the J.Ds. submits that he does not want to press this application, which is accordingly dismissed as not pressed. H.B.T./Z-5/K Application dismissed.