2003 PLP 50 (PTD)

Through this single order I intend to dispose of S.T.As. Nos.460 and 461 of 2002.

2. The appellants were required to pay an amount of Rs.13,33,14,970 as central excise duty alongwith additional duty and a penalty of Rs.10,00,000 through an order in original dated 25‑1‑2001 passed by the Additional Collector of Customs, Sales Tax and Central Excise (Adjudication), Lahore. Also through a separate order recorded by the said authority on 13‑2‑2002 the appellant was required to pay an amount of Rs.18,60,78,750 as sales tax alongwith additional tax and a penalty of Rs.5,58,23,

625. The learned Customs, Excise and Sales Tax Appellate Tribunal through their order dated 4‑12‑2001 set aside both orders in original and remanded the case to the Collector of Customs (Adjudication) for de‑novo proceedings.

3. During fresh proceedings after remand the Collector (Adjudica tion) issued show‑cause notices on 8‑5‑2002 amending the earlier show -cause notices dated 7‑9‑1999. One notice pertained to central excise duty and confronted the appellant with the provision of rule 10(3) instead of rule 10 as mentioned in the earlier show‑cause notice. The notice issued with regard to Sales Tax Act, 1990 mentioned section 36(1) of the Sales Tax Act, 1990 instead of section 36 as earlier confronted.

4. The appellants challenged the vires of new notices as well as the competency of the Adjudicating Authority to issue such, notices. The learned Collector (Adjudication) rejected their objection by a short order dated 19‑6‑2002 remarking "this observation will be taken up with the final disposal of the case".

5. Aggrieved by that order the appellant again approached the learned Tribunal to contend that the amendments in the show‑cause notices were not only illegal but also mala fide inasmuch as these had in fact circumvented the prescribed, limitation under law for issuance of such notices. Learned Member (Technical) of the Tribunal found that the above order recorded by the Collector (Adjudication) postponing a decision on their objection with regard to the vires of the notices as well as the change in limitation contemplated through these notices was not an order which could be assailed before the Tribunal. The learned Chairman as Member (Judicial), however, was of the view that under section 46 of the Sales Tax Act, 1990 the appeal laid to the Tribunal against a "decision" or, "order" of any Sales Tax Officer. Therefore, according to him, the appeal was maintainable before the Tribunal. At the same time he was of the view that the impugned short order deferring the decision on the appellant's application for withdrawal of amended notices/corrigendum was not unusual and that the Adjudicating Authority could defer final decision on legal objection to be taken up alongwith the merits of the case. Therefore, while upholding the maintainability of the appeal he refused to interfere with the deferment of decision on the appellant's application for withdrawal of the corrigendums.

6. According to the appellant as many as four questions of law (as detailed in appeal) arise out of the order of the Tribunal.

7. After hearing the learned counsel for the appellants, we are not persuaded to agree. The issue if the impugned short order amounts to a "decision" or an "order" which could be assailed before the Tribunal need not be decided in this appeal. The issue simply being if a quasi -judicial authority could postpone a decision on a legal objection to be taken up for adjudication alongwith the merits of the case. To that extent we are in agreement with the findings recorded by the learned Chairman that it could have been done. An Adjudicating Authority or for that matter any trial Court in similar situation can very well defer the consideration of a legal objection and to take it up with the merits of the case at the time of recording the final decision.

8. In the present case the Adjudicating Authority is still seized of the matter. The appellant can very well press his objection against its competency as well as the vires of the notices in the light of the provisions of law and the authoritative pronouncements of the superior Courts. In case an adverse final finding is recorded on its legal and factual objections the petitioner will have a right of appeal before the Tribunal.

9. Therefore, without deciding the issue of maintainability of the appeal before the Tribunal we are of the view that none of the aforesaid questions arise out of the order to be entertained by this Court under section 36(c) of the Central Excises Act, 1944 or section 47 of the Sales Tax Act, 1990.

10. Dismissed in limine. S.A.K./W‑69/L Order accordingly.