2012 PLP (Trib (PTD)

SYED NADEEM SAQLAIN (CHAIRMAN).

Titled appeal has been filed at the instance of registered person calling in question the Order-in-Appeals Nos. 37-41 of 2008 dated 1-1-2008 passed by the learned Collector of Customs, Sales Tax and Federal Excise (Appeals), Faisalabad whereby he dismissed the appeal filed against Order-in-Original No. 686 of 2006 dated 30-12-2006.

2. Briefly stated the relevant facts of the case are that the appellant filed refund of sales tax of Rs.132,490 incurred in connection with zero-rated supplies for April, 2005, whereupon a show cause notice dated 19-10-2006 was issued by the department as to why refund claimed by the appellant may not be rejected under sections 10(4) and 11(2) of the Act. Adjudication proceedings were completed upon rejection of refund claimed by the appellant and then being disagreed and aggrieved with the treatment meted out at adjudication stage, appellant filed the first appeal before the learned Collector (Appeals) who dismissed the same as time barred by 127 days beyond statutory time limit of 30 days for filing of appeal under section 45B of the Sales Tax Act, 1990.

3. The registered person feeling aggrieved and dissatisfied with the proceedings mentioned supra has now come up in the second appeal before this Tribunal. The learned counsel for the registered person vehemently argued that the first appellate authority without considering the written submissions made by appellant, commenced adjudication on issue of time limitation without touching the merits of the instant case. He further pleaded that the modern trend is not to sacrifice justice at the altar of mere technicalities of law or as the case may be, of fact cannot be allowed to defeat the cause of natural justice as it was in the interest of appellant to file appeal within statutory period of time and thus prayed for setting aside the impugned order passed in absence of considering its merits. Conversely, the learned DR forcefully urged on behalf of the department that the provisions of section 45B are very clear and no exception thereof can be made and thus prayed that the order of learned Collector (Appeals) may not be interfered and be remained intact.

4. We have heard the learned representatives and have gone through the record minutely with the assistance of both the respective rival parties and also examined the case-law cited at the bar. There is no doubt that the appeal filed before the first appellate forum was time barred by 127 days yet the higher Courts has repeatedly held that the cases should be decided on merits instead of on technical grounds and technicalities of law and facts should always be avoided and discouraged in order to do complete justice and to ensure that justice is not only done but also seen to have been done. The Rules of procedure are enacted for fostering the ends of justice and preserving the rights rather than to stifle the dispensation of justice and, unless they are insurmountable; ends of justice always outweigh the manner of practice and procedure.

5. We have benefited from the various findings recorded in re: "Controller Land Acquisition v. Mst. Katija and others" reported as ((1987) 56 Tax 130 (SC India)). His Lordship while speaking for the Court favoured a justice oriented approach in the following manner:-- (a) "Ordinarily, a litigant does not stand to benefit by lodging an appeal late. (b) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. (c) "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hours delay, every second's delay? The doctrine must be applied in a rational, common sense and pragmatic manner. (d) When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (e) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resting to delay. In fact, he runs a serious risk. (f) It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

6. We are of the firm opinion that by delaying an appeal, the registered person does not stand to gain neither anything nor a delay on his part gives rise to or creates a valuable right in favour of the Revenue-department and the judiciary is respected not on account of its power to legalize injustice under the garb of technicalities, but because, it is capable of removing injustice and the taxpayer, being citizen of Pakistan, has a right under its Constitution to expect so. Reliance is placed on the judgment of honourable Lahore High Court, Lahore in case of "Messrs Ashraf Dewakhana v. Additional Collector Sales Tax" reported at (GST 2003 CL 601) wherein it has been laid down as under:-- "In Revenue matters, the prayer for condonation by an assessee/citizen should all the more be considered sympathetically. It is for the reason that the notion of accrual of valuable right to an adversary after the lapse of limitation in ordinary cases of civil nature is not generally applicable to the matters of Revenue. In such cases, since it is always the State against a citizen or assessee, the interest of immediate recovery cannot be described as accrual of a valuable right. In that order, we also expressed the view that the kind of right coming into being by reason of default of a party to approach to particular forum within a specified time is not an absolute right nor does it frustrate exercise of judicial discretion where ever a condonation is provided for in a statute. Further that a tax in any manner being an exaction of money from the subject and its recovery when becoming due un-fettered by any limitation in terms of time, no valuable right could be said to have accrued to the opposite party, the State. Therefore, for the various reasons stated in that order, we will allow this appeal."

7. The learned departmental representative appearing on behalf of revenue when confronted with the above quoted case-law could urge nothing to controvert the contention raised on behalf of the appellant therefore; we are pleased to condone the delay of 127 days in filing of appeal under section 45B of the Act.

8. In view of what has been stated above, the treatment meted out to the appellant by the learned Collector (Appeals) is somewhat harsh and unjust. The impugned order is therefore set aside by allowing this appeal and the instant case is remanded back to the Collector of Appeals for its disposal on merits and in accordance with law.

9. The appeal filed by the registered person is allowed in manner as indicated above. C.M.A./25/Tax(Trib.) Appeal allowed.