2011 PLP (Trib (PTD)

M.A. JAVED SHAHEEN (JUDICIAL MEMBER).

This instant appeal has been filed by the appellant/registered against the impugned Order-in-Appeals Nos.152-153 'of 2009 dated 28-1-2009 passed by the Collector of Customs, Sales Tax and Federal Excise (Appeals), Faisalabad dated 28-1-2009 on the ground of rejection of refund amounting to Rs.115,278.

2. Mr. Muhammad Yousaf Khan, Advocate is present on behest of the appellant/registered person while Miss Sumaira Umer is present on behalf of the Revenue.

3. Facts briefly stated for the purpose of disposal of this appeal are that the appellant/registered person is conducting a business at manufacturing of "Jute Products". The registered person bearing Sales Tax Registration No.4-9-5310-003-55 filed refund claim for the tax period 01-2008. An amount of Rs.179,278 was deferred by the adjudicating authority on the discrepancies/irregularities like Non-Filer', Wrong Tax Period, Subject to verification and Does not exist. Based on the above mentioned discrepancies/irregularities the taxpayer was charged with the violations of sections 4, 7, 8(1), 10 and 26 of the Sales Tax Act, 1990 read with section 2(14) and Refund Rules (The Sales Tax Rules, 2006 notified vide S.R.O. 555(I)/2006 dated 5-6-2006). The appellant was called upon to show-cause under section 11(2) of the Sales Tax Act, 1990 and asked the registered person as to why input tax/ refund amounting to Rs.179,278 may not be rejected. The adjudication proceedings culminated in passing of Order-in-Original No.1356/2008 dated 12-7-2008 by the Assistant Collector (Refund), Faisalabad.

4. Being aggrieved with the treatment meted out by the Assistant Collector (Refund), Faisalabad, the appellant/registered person filed appeal before the Collector (Appeals) who vide his order 28-1-2009 partially accepted the appeal of the appellant whereas total amount of three companies i.e. Rs.115,487 was rejected due to non-production of documents by the learned Collector(A). Feeling dissatisfied with the treatment given by the learned first appellate authority, the appellant/ registered person has come up appeal before this Tribunal.

5. The learned AR appearing on behest of the appellant/registered person has challenged the orders of the authorities below and has argued that the learned Collector of Customs (A) has partly disallowed the appeal of the appellant/registered person only on the basis that the documents pertaining to refund claim of Messrs Attack Petroleum Ltd., amounting to Rs.48,317, Messrs Khalid Traders amounting to Rs.6,492 and Messrs Pakistan State Oil Co. amounting to Rs.60,678 were not produced at the time of hearing as the same were misplaced by the appellant during the shifting of the office record. Therefore, the claim of refund totaling to Rs.115,487 was disallowed by the learned Collector of Customs (A) thereby the appellant was technically knocked down. Due to hectic efforts the relevant documents were not submitted before the learned Collector (A). In the meanwhile, the impugned order was passed by the Collector (A). He also urged that he has no remedy available to the appellant except to file this present appeal before this Tribunal for the redress of its grievance. He has traced out the genuine documents and cannot be any doubt regarding veracity/authenticity of the same. He has contended that the scale of justice demands that party may not be deprived of its valuable property rights of refund on the basis of the said documents misplaced not due to his negligence but on the circumstances beyond his control. He prays that the refund claim of Rs.115,487 may kindly be passed and direction be given to the concerned department to pay the same to the appellant/registered person. On the other hand, the learned D.R. appearing on behalf of the department has stated that the orders passed by the authorities below are in order. The DR has stated that the appellant/registered person has not produced relevant requisite documents at the stage of adjudication proceedings, therefore, the claim of refund has rightly been rejected.

6. I have heard the arguments of both the rival parties and have perused the relevant record available on file. At this juncture, it is requested by the learned AR that the case be remanded back for re-processing of the same to the concerned Assistant Collector (Refund) to submit relevant documents and prove the genuineness of the refund claim which was misplaced during the shifting of office. The learned DR has shown no reservation if the case is remanded back to the concerned officer for afresh proceedings. Keeping in view the above discussion, both the orders of authorities below are declared to be illegal, void and without lawful authority. It would be in the interest of justice, the case is remanded back to the concerned officer for processing of the appellant/registered person's claim afresh in the light of documentary evidences available with the appellant. The registered person is directed to submit all the relevant documents before the learned adjudicating authority in support of his refund claim. Proper opportunity, as envisaged under the law; be accorded to the appellant/registered person.

7. The appeal filed by the registered person is disposed of as above. C.M.A./19/Tax(Trib.) Order accordingly.