2002 PLP (Trib (PTD)

MUMTAZ ALI, MEMBER (TECHNICAL).‑

1. This appeal is directed against the Order‑in‑Appeal No. SE/ST‑104 of 1996, dated 5‑6‑1996 passed by Collector of Customs, Central Excise and Sales Tax (Appeals), Northern Zone, Rawapindi and Order‑in‑Original No. 11 of 1994 passed by Assistant ‑Collector, Sales Tax, Collectorate of Central Excise and Sales Tax, Rawalpindi. Briefly speaking the farts of the case are that Messrs Saheen Lime, engaged in the manufacturing of bricks were liable to Sales Tax since October, 1992 but they did not pay this tax till October, 1994. So the learned Assistant Collector issued and delivered show‑cause notice to the appellant and, later on passed the impugned order requiring, the appellant to pay Sales Tax. Feeling aggrieved the appellant filed appeal with Collector of Customs, Central Excise and Sales Tax (Appeals), Northern Zone. Rawalpindi which was rejected vide the impugned order dated 24‑1‑1994. Hence this appeal.

2. The case was heard on 7‑10‑1996. Mr. Farhat Nawaz Lodhi, Advocate argued the case on behalf of the appellant while 'Mr. Siddique Awan, Deputy Superintendent attended as Departme1 Representative.

3. The learned counsel submitted that the Assistant Collector of Sales Tax, Islamabad had passed his impugned Order No. 11 of 1994, dated 24‑1‑1994 on the back of the appellant as neither a show‑cause notice was ever received by the appellant nor any opportunity of defence was provided by the respondent No.2 before passing the subject order. He further submitted that the impugned order was also outside ‑ the Assistant Collector's jurisdiction because under S.R.O. 994(1)/1992, dated 8‑10‑1992, .the Assistant Collector in BPS‑17 is not authorized to adjudicate cases involving taxable goods exceeding the value of Rs.100,000 whereas in the instant case the differential demand raised after the passing of the impugned. order is in the tune of Rs.25,38,000 which by implication means that the value of the goods is much higher and so the case is without jurisdiction and therefore,, void as held by the Supreme Court of Azad Jammu and Kashmir in their order reported as PLD 1987 SC (AJK)

60. He further submitted that the appeal would not suffer from the limitation constraint because in the case of a void order it has been held by the Balochistan High Court that there is no limitation to seek relief, against a void order PLD 1988 Quetta 1992 (DB). He also relied on another case reported as PLD 1988 Revenue 1952.

4. The Departmental Representative on the other hand submitted that the show‑cause notice dated 7‑1‑1993 was first sent by post to the appellant but when it was received back undelivered, it was personally served on the appellant by the Superintendent of Sales Tax, Rawalpindi. If the appellant failed to appear before the learned Assistant Collector on the hearing date it was of his own choosing but did not amount to, denial of opportunity of defence to the appellant. He has further submitted that the impugned order is not without jurisdiction as the learned Assistant Collector has decided upon the principle that the appellant was liable to pay sales tax and required him to pay the same in respect of the lapsed period but without determining liability of the appellant in precise terms which the proper officer of Sales Tax had eventually to do. With regards to the other averments of the appellant's counsel he, however, did not make any submission.

5. What is apparent from .the record is the fact that the learned Assistant Collector has passed a quasi, judicial order which is based‑on certain quantities of goods manufactured and supplied by the appellant. The value of these goods far exceeds the, amount of Rs.100,

000. He being an officer in BPS‑17 at the time of passing this order was not competent to pass order in this matter, as it fell in the jurisdiction of the A Collector of Sales Tax. Accordingly we set aside the impugned order and remand the case for de novo consideration to the learned Collector of Sales Tax, Rawalpindi. The matter of the short assessment in this case shall be deemed to be a pending proceeding before him which he shall dispose of by considering it afresh and affording appropriate opportunity of defence to the appellant.

6. Appeal accepted to the extent ordered above. C. M. A. /M. A. K./340/Tax (Trib.) Order accordingly.