1995 PLP 214 (MLD)

Malik Muhammad Nawaz for Petitioner. Sh. Maqbool Ahmad, Dy. A.‑G. for Respondents. Date of hearing: 4th May, 1994. The respondent No.1, Assistant Collector, Central Excise and Land Customs, Lahore passed an order 8‑12‑1982 in respect of determination of excise duty on the sales of M/s. Pakistan Restaurant. The officer concluded by saying that sales of the petitioner exceeded Rs.5,00,000 (Rupees five lacs) and as such they were liable to pay excise duty on the above‑noted sales. The validity of the said order was challenged by the petitioner by filing an appeal which was dismissed by the respondent No.2, Collector on 22‑10‑1985. The operative part of the appellate order is as follows: ‑‑‑ "After going through the case record and hearing the Advocate, I am led to conclude that the Assistant Collector has rightly determined the turn‑over. I find no ambiguity or lacuna in his findings. The same are, therefore, upheld and the appeal rejected." The revision of the petitioner was dismissed on 17‑4‑198 by the Additional Secretary, Ministry of Finance, Government of Pakistan. The relevant portion of the order is reproduced below: ‑‑ "Records of the case have been examined and submissions made by the learned counsel considered carefully. It is observed that the case has been remanded twice to the adjudicating officers but they have come to the same conclusion that the turnover of the applicant exceeds rupees five lacs and they are liable to the levy of Central Excise Duty. Thus all the points raised by the applicants have been discussed in detail and convincingly rebutted by the adjudicating officer and the appellate authority. I, therefore, see no reason to interfere with the orders passed by the officers below. Revision application has no force and is accordingly rejected."

2. It is forcefully contended by the learned counsel that the respondent functionaries did not decide the appeal and revision having been instituted by the petitioner/assessee by applying their judicial mind and as such no valid order had been passed by them in this behalf. It is argued that there is sufficient evidence available on the record tc show that the sale of the petitioner was far less than rupees five lacs and, therefore, the petitioner was not liable to pay excise duty as already assessed in this case. The next contention is that the respondent‑functionary did not give any reasons in support of the impugned orders. In law, they were called upon to pass speaking order which they failed to do. According to the learned counsel there is reliable evidence available to demonstrate that the sale of the petitioner was less than rupees five lass.

3. Mr. Maqbool Ahmad Bata, learned Deputy Attorney‑General states that the Assessing Authority has passed an order which was upheld by the appellate and revisional authorities and beyond that, he could not say anything substantial in support of his plea.

4. I have heard the learned counsel for the parties and have perused the record with their assistance. The impugned appellate and revisional orders show that the respondent‑functionaries did not apply their mind to the contentions raised and argued by the learned counsel appearing on behalf of the petitioner/assessee before them and thereby failed to give decision of their own. The evidence of the petitioner was not discussed or taken into consideration by the respondents. The points raises: by the petitioner in appeal and revision were not attended to in their true perspective by the respondents. In support of the plea, learned counsel:‑relies upon Mst. Chanda Begum v. Settlement Commissioner and another PLD 1977 SC 503 and Bahadur and another v. The State and another PLD 1985 SC

62. The impugned orders when seen through and tested on the touchstone of the authorities cited above, the only conclusion which could be drawn is that they were not speaking orders inasmuch as the evidence and contentions of the petitioner were not considered by the respondents. The appeal is the continuation of the original cause and as such the whole dispute between the parties was open to scrutiny by the appellate authority. The appellate forum was, therefore, called upon to pass an exhaustive order on the basis of available evidence. The material evidence of the petitioner that the sale of the business concern was less than five lacs was not considered for unknown reasons. This non‑speaking order was upheld by the revisional authority. This authority also did not give any reason in support of its decision. The impugned orders are not fair, just and proper and do not fulfil the requirements of law. This is what was held by the learned Supreme Court in the above‑referred authorities. Respectfully following the principles laid down in the above authorities, the impugned orders are set aside by declaring them without lawful authority and of no, legal consequence. In the result, the case is remanded to the appellate authority, who shall pass a fresh speaking order on the basis of evidence available on record after hearing the petitioner. With these observations, this petition succeeds and is allowed with no order as to costs. H.B.T./P‑110/L Petition allowed.