2013 PLP (Trib (PTD)

The facts of the case are that appellant's refund claim relating to further tax under section 3(1A) of the Sales Tax was rejected by the AC refunds on 17-1-2007. The said order was challenged through an appeal, however, the same was also rejected vide order dated: 11-5-2007 and the learned Collector observed as under:-- "

10. I have heard the rival parties and examined the case file along with evidence, documentary information submitted by both sides which led me observe that the appellant had filed refund claim of sales tax amount of further tax under section 2(25) of the Sales Tax Act, 1990 in the light of the orders of the Honourable Sindh High Court Karachi dated: 14-12-2000 in C.P. No.145 of 1999 which has subsequently been set aside by the Honourable Supreme Court of Pakistan vide judgment dated: 1-2-2006. According to the learned advocate of the appellant's counsel that his client had supplied sugar to the person liable to be registered. Whereas the Collectorate has contested that according to contents of the monthly tax returns filed by the appellant during the relevant tax period in question clearly and glaringly provide sufficient proof that sugar was supplied to both the registered and non registered persons. Besides, amount of Rs.33,658,783 of further tax claimed by the appellant tallied with the supplies they have made to non registered persons. Moreover, these supplies were made by the appellant to different buyers and their names and addresses are indicated in the relevant sales tax invoices which also provides that these invoices of taxable supplies did not bear the sales tax registration number of buyers so it further provide sufficient reason to believe that the appellant made supplies to non registered persons which falls in the ambit of section 3(1A) of the Sales Tax Act, 1990. In view of these documentary evidence provided and relied upon by the respondent Collectorate gives ample proof to believe that no doubtedly taxable supplies during the tax period from July 1999 onwards were made to the non-registered persons for which leviable tax due from the appellant was not deposited, hence provisions of section 3(1A) are correctly and legally attracted. I, therefore, on the basis of above emerged factual position hold that the learned adjudicating officer has correctly and legally disallowed the refund claim of sales tax amounting to Rs.33,658,783.10 under Rule 8(2) of the Sales Tax Refund Rules, 2000 notified under S.R.O. 417(I)/2000 dated: 20-6-2000 read with sections 3(1A), 2(25) of Sales Tax Act, 1990." The said order was challenged through an appeal before the appellate Tribunal and the Tribunal vide its order dated: 10-1-2011 rejected the same. The present application has sought rectification of the said order.

2. Rival parties have been heard and case record examined. After the perusal of case records and consideration of the arguments, we have considered the facts of the case, the evidence brought on record and the case-law cited and have given our earnest consideration. We accordingly hold as under:- (a) Sales Tax collected at 1% relating to the financial year 1998-1999 was found to be without jurisdiction by the Hon'ble Supreme Court of Pakistan vide judgment in C.P. 1955-L/99 in the case of Tandian Wala Sugar Mills Limited and others vide order dated: 19-5-2000 and the payment under section 3(1A) at Rs.60,21,877 was refunded to the applicant vide order dated: 21-3-2005. (b) The said findings are applicable to similar and identical facts for the refunds payment under section 3(1A). As regards application of section 3-B, the department has declined to accept the applicability of section 3B of the Sales Tax Act, in this regard the department observed: "The documents produced by Messrs Matiari Sugar Mills Ltd., have been, examined and found that Further tax amounting to Rs.6,021,877 for the period July, 1998 to June, 1999 have been paid by the claimant themselves and have not been charged/paid by the consumer, thus section 3B of Sales Tax Act, 1990 does not attract in this case. The claimant have timely filed refund claim as required under section 66 of the Sales Tax Act, 1990, thus objection is irrelevant." (c) The Order-in-Original No.2 of 2007 passed on 12-1-2007 by the Asstt. Collector was barred by limitation as per Sales Tax Refund Rules, 2000 and sections 66 and 67 of Sales Tax Act. (d) The Order-in-Original passed by the Asstt. Collector (Refunds) was beyond his jurisdiction since the power to issue a Refund of Rs.33,658,783.10 stood vested in the Deputy Collector and Addl. Collector as highlighted in the rules. The learned Tribunal has mistaken in construing the figures correctly in their order. (e) The Asstt. Collector Refunds, the Collector Refunds and the Bench of the Tribunal as per their impugned orders have grossly erred in holding that evidence in support of the Refund claim was not furnished. On the contrary the proof of payment of tax under section 3(1A) was from applicant's own funds is fully established. (f) In the hearings before the Asstt. Collector (Refunds) the Collector (Refunds) and the bench of the Tribunal in their impugned orders have grossly erred in holding that evidence in support of refund claim was not furnished by the applicant. This is not correct. Substantial details have been furnished along with audited books of accounts and the registers maintained on the sport. And it is also established that as per order of the Tribunal there was no liability on the applicant since he had not collected any tax from his customers. Even then he had paid the taxes from his own pocket. (g) The general principles in this regard have been laid in the case of Fatima Sugar Mills (reported as GST 2003 page 415) decided by the Full Bench of the Tribunal and in the case of Northern Bottling Co. (Pvt.) Ltd v. FOP (reported as 2004 PTD 226), hence the Refund of tax paid on coercion could not have been refused. (h) The officer of the department as well as the Collector have totally failed to examine that in the light of the analogous Refund Orders passed for the years ending 30-6-1999, there was no scope to reject the scheme of the refund or additional refund for subsequent years.

3. The applicant has been filing along with memo. of appeal and memo application for recall and rectification, evidence in accordance with the rules of the Appellate Tribunal, however, no counter affidavit has ever been filed on behalf of the department.

4. In the circumstances, we hold that the refund had been disapproved and refused on some crucial mistakes of law and fact. There is absolute abuse to the principle of natural justice.

5. Accordingly, we recall the earlier order of the Tribunal dated 10-1-2011, rectify the mistake in the impugned order and direct the lower authorities to refund the amount wrongly charged for the appellant.

6. Orders are made accordingly. CMA/188/Tax(Trib.) Order accordingly.