2012 PLP (Trib (PTD)

The captioned Sales Tax Appeal has been filed at the instance of the revenue calling in question the order of the learned Collector (Appeals). Collectorate of Customs, Sales Tax and Federal Excise, Faisalabad against the Order-in-Appeal No.691 of 2008 dated 30-4-2008.

2. Facts leading for the disposal of the instant appeal are that during processing refund claim filed by the registered person for the period 4 of 2005 an amount of Rs.506,394 was rejected on account of less weight exported passing Refund Payment Order No.643 of 2006 dated 14-4-2006 by the Assistant Collector, Sales Tax (Refund), Faisalabad. The dispensation has compelled the registered person to come up in appeal who, by virtue of his order dated 30-4-2008 decided the matter with the following extract:-- "After due consideration, I find that the Board vide its clarification C.No. 6(35)STC/2003 dated 1-4-2006 has already adopted the following procedure in respect of weight variation; (i) "Where weight shortfall i.e. excess of declared weight over actual weight is 5% or less, sales tax refund will be paid without any deduction on this account after routine scrutiny as per notified procedure." (ii) "Where weight shortfall is higher than 5%, the Collectorate may undertake scrutiny to ascertain the effect of such weight shortfall and reduce the refund amount by the same proportion, if so warranted." I find that the Board has relaxed weight variation up to 5% and thus the deduction/rejection of refund made by the respondent department up to 5% is not justified in the light of Board's clarification, I find the stance of the appellants correct. In view of the above, it is held that the refund involved there is admissible upto 5% weight variation and the rest is rejected."

3. Both the learned representatives appearing at the bar have been heard and record perused.

4. We have heard the arguments advanced by the rival parties and perused the relevant available record before us. We have noted that the Refund Payment Order was passed without providing a reasonable opportunity of being heard to the appellant/registered person as well as against the basic principle of natural justice and equity i.e. audi alteram parterm. Further noted that before passing, refund payment order, no notice has been served upon the appellant or his counsel. During the Court proceedings, the learned counsel for the respondent to strengthen his case furnished the copy of vide letter C.No.6(35)STC/2003 dated 1-4-2006, copy of refund Order No.643 of 2006 dated 14-4-2006, 2005 SCMR 492 (Supreme Court of Pakistan), (1992) 66 Tax 126 (SC Pak(sic)), 2011 PTD 155 (Lahore High Court, Lahore) and the unreported judgment of learned Central Excise and Sales Tax Appellate Tribunal, Lahore. The learned D.R. could not rebut the findings of the learned Collector (Appeals), Faisalabad with any tangible or material evidence. Keeping in view the aforementioned facts and circumstances of the case as well as after having gone through the case-law submitted by the learned counsel for the respondent we find no force in the contentions raised by the learned D.R. during the court proceedings. Consequently, we are constrained to agree with the findings of the learned Collector (Appeals), Faisalabad dated 30-4-2004 which is hereby maintained by us. As a result, the departmental appeal is dismissed being devoid of any merit.

5. Ordered accordingly. H.B.T./262/Tax(Trib.) Appeal dismissed.