2016 PLP (Trib (PTD)

NAZIR AHMAD, JUDICIAL MEMBER.

Through the titled miscellaneous application, the department/applicant seeks rectification of ATIR Order dated 29.10.2013 recorded in registered person's appeal bearing STA No.584/LB/2009, on the following grounds:- i) That the learned ATIR vacated the Order-in-Original merely relying on judgment of the Honourable Peshawar High Court reported as 2004 PTD 2267 by ignoring judgment of the Honourable Supreme Court of Pakistan reported as 2001 PTD 2094, which was duly relied upon by the Honourable Lahore High Court, Lahore in its judgment reported as 2008 PTD 1267 wherein levy of further tax at the rate of 3% through Finance Act, 1999 was maintained, as the same did not suffer from any legal infirmity. ii) That the learned ATIR while disposing of the appeal of the registered person did not consider the fact that the same has not been assailed before the Collector, Central Excise and Sales Tax (Appeals-II) and hence, the Order-in-Original has attained finality in the eyes of law.

2. However, during the course of hearing, learned DR appearing on behalf of the department/applicant has opted to argued the case simply by reiterating the above mentioned ground No. (i) whereas ground No. (ii) has not been pressed.

3. On the other hand, the learned counsel appearing on behalf of the registered person prays for rejection of the instant miscellaneous application by arguing that the mistake pin pointed by learned DR is not apparent from record, which could be seen without going into details.

4. We have heard the arguments advanced by rival parties and also carefully gone through the relevant record available on file. We do not find ourselves in agreement with the line of arguments adopted by learned DR on the following grounds:- i) Firstly, in the judgment on which this Tribunal has relied, the viries of section 3(2)(c) were challenged and the Honourable Peshawar High Court was pleased to struck down the provision accordingly. ii) Secondly, the case relied by this Tribunal relates to taxable goods falling under 3rd Schedule Item and the appellant's case also relates to 3rd Schedule Item whereas the case relied on by the department is regarding crystalline sugar, which does not fall under 3rd Schedule. iii) Thirdly, while deciding the registered person's appeal bearing STA No.584/LB/2009, reliance placed by this Tribunal on the judgment of the Honourable Peshawar High Court reported as 2004 PTD 2267 is on all fours as the judgment of the Honourable Supreme Court of Pakistan reported as 2001 PTD 2094 has already been discussed therein. The judgment of the Honourable Lahore High Court, Lahore reported as 2008 PTD 1267 is distinguishable and not applicable on the facts and circumstances of the case in hand as the discussion made therein stands for section 3(1-A) and not for section 3(2)(c) of the Act. iv) However, the careful perusal of the judgment relied on by the department reveals that in the said judgment the Honourable Supreme Court of Pakistan has not thoroughly discuss the provision of section 3(2)(c) of the Act whereas in the presence of this judgment, the viries of this provision was challenged before the Honourable Peshawar High Court, who vide its reported judgment cited as 2004 PTD 2267 after exhaustive discussion declared the said provision as ultra vires. Since, the CPLA against the said judgment is pending before the honourable Supreme Court of Pakistan and the operation of the same has not been suspended yet, therefore, this Bench has rightly by placing reliance on the judgment of Peshawar High Court decided the issue accordingly.

5. The learned DR has failed to pin point any mistake apparent from record, which could be rectified. From the foregoing discussion, as no glaring mistake apparent from the surface of ATIR order supra, therefore, the same does not need rectification and the request made by the department/applicant as per titled miscellaneous application merits rejection on this Score.

6. In view of the above, the departmental application is rejected accordingly. KMZ/14-Tax (Trib.) Application rejected.