2003 PLP 1855 (PTD)

S. 36-C

Appeal to High Court

Maintainability

Only a question of law arising out of order of Tribunal could be subject-matter of appeal before High Court

Question of law should be the one, which was duly raised before and ruled upon by Tribunal or arose as a natural consequence of its order

Where such conditions were not answered in appeal, High Court would refuse to entertain same. Ch. Muhammad Hussain for Appellant. This further appeal under section 36-C of the Central Excise Act, 1944 assails an order of the Customs Excise and Sales Tax Appellate Tribunal, Lahore Bench, dated 23-1-2003.

2. The respondents approached the Revenue for refund of the claim of a sum of Rs.20,61,600 which was alleged to have been recovered twice. The Revenue allowed only a sum of Rs.12,68,600 while the remaining claim of Rs.8,00,000 was rejected on the ground that the original treasury challan for said amount deposited on 31-1-1978 was not produced. The photocopy submitted by the assessee/petitioner was not accepted as a proof of the deposit.

3. On the culmination of adjudication proceedings the Additional Collector Central Excise Faisalabad rejected the claim of the respondent for refund of the said amount. On further appeal a Division Bench of the learned Tribunal accepted the appeal. The relevant part of the findings so recorded reads as under:-- "Therefore, we have to decide the issue on the basis of available evidence. The documents referred to by the representative of the appellant's company are available on record. In addition to photostat copy of the treasury challan showing deposit of Rs.800,000 on 31-1-1978. Assistant Collector Central Excise, Faisalabad vide his letter, dated 11-1-1987 addressed to Deputy Collector Central Excise. Lahore did intimate cash deposit of Rs.16,00,000 by the appellants vide treasury challans, dated 31-1-1978 and 28-2-1978. Similarly on a reference from Superintendent Central Excise, Nishatabad Circle, Faisalabad, the District Accounts Officer did verify deposit of Rs.8,00,000 by the appellants on 31-1-1978. The Manager, UBL Nishatabad Branch, Faisalabad did confirm vide its certificate, dated 10-2-2001 that an amount of Rs.8,00,000, dated 31-1-1978 had been credited to the account of Central Excise Duty on behalf of Messrs Crescent Sugar Mills Distillery Ltd. UBL had further confirmed that on the asking of the appellant's company an amount of Rs.800,000 paid vide their Cheque No. SC 702443, dated 29-1-1978 was deposited with State Bank of Pakistan, Faisalabad on 31-1-1978. This is sufficient evidence to prove the genuineness of the deposit of the amount of Rs.800,000 on 31-1-1978 and no counter-evidence is available to prove that the said evidence was either not reliable and/or the deposit of Rs.800,000 did not take place on 31-1-1978 on behalf of the appellants-Company. Keeping in view these factors we consider that the appellants are entitled to have the refund of Rs.800,000 and, therefore, the appeal is accepted and the impugned order is set aside."

4. Learned counsel for the appellant claims that since a photocopy of challan was not admissible under the Qanoon-e-Shahadat Order the impugned order of the Tribunal is bad in law. Also claim that it gives rise to the legal issue if the photocopy of a challan can be accepted as a legal evidence of the deposit of the claim amount.

5. After hearing the learned counsel we are not inclined to entertain the appeal for two reasons Firstly, the learned Tribunal has recorded as finding of fact that the aforesaid amount claimed as refund was duly deposited with the treasury. That finding of fact cannot be a subject- matter of further appeal before this Court under the provisions of section 36-C of the Central Excise Act, 1944. Secondly, the issue as to the evidential value of a photocopy of the challan was neither raised before the Tribunal nor they actually ruled upon the same. Therefore, it cannot be said to have arisen out of the impugned order. It hardly needs emphasis that only a question of law arising out of the order of the Tribunal can be a subject-matter of appeal before this Court. However, that question of law shall be the one which was duly raised before and ruled upon by the Tribunal or it arose as a natural consequence of their order. Since these conditions are not answered in this departmental appeal, as said above, we will refuse to entertain it.

6. Dismissed in limine. S.A.K./C-211/L Appeal dismissed.