2010 PLP (Trib (PTD)

Titled appeal has been filed at the instance of the appellant/ registered person, calling in question the order-in-appeal (the impugned order) dated 9-9-2008, passed by the learned Collector Custom, Sales Tax and Federal Excise (Faisalabad). Facts relevant for disposal of present appeal are that a show-cause notice dated 19-12-2006 was issued to the appellant by the Assistant Collector, Sales Tax (Refund) on the allegation "refund was against invoices against black listed unit which also included Messrs Asia Textile, sales tax amounting to Rs.7,91,432 for the tax period June, 2001. On the basis of aforesaid show-cause notice, the Assistant Collector Sales Tax (Refund) Faisalabad upheld the show-cause notice and order for recovery of alleged total .of Rs.3,006,276 which included an amount of Rs.7,91,432 to be recoverable from the supplier Messrs Asia Textile. Feeling dis-satisfied with the treatment meted out by the appellant, an appeal was filed before the learned Collector Sales Tax (Appeals) who accepted the appeal of the appellant to the extent of sales tax relatable to Messrs Asia Textile. However, an other show-cause notice dated 9-1-2007 for the same period i.e. June, 2001 involving sales tax Rs.4,657,421 which included sales tax of Rs.11,39,380 against supplies received from Asia Textile. As per facts narrated in the body of appeal, the amount of Rs.11,39,380 was included in the input tax Rs.45,37,125, fate of which already stood decided vide Sales Tax Order-in-Appeal No.95 dated 5-4-2007 as admissible in the first round of litigation . The appellant approached the learned Collector Sales Tax and however, was unable to persuade the appellate authority, hence the instant appeal before the Tribunal.

2. The learned A. R. has submitted at the bar that the Sales Tax amounting to Rs.7,91,432 related to the same period as well as the same supplier, about which the plea of the assessee was accepted by the learned Collector, Sales Tax in the first round of litigation. The learned A.R. reiterated that in issuance of show-cause notice for the same period amounted to double taxation causing harassment to the appellant. The learned A.R. stated that even otherwise the Assistant Collector Sales Tax (Refund) did not have the jurisdiction to pass an order where the amount in question exceeded Rs.1(M). While summing up the learned A.R. contended that since the issue with regard to the period of January, 2001 has already been decided by the learned Collector Sales Tax and also the fact that the order-in-original passed by the learned Assistant Collector Sales Tax is coram non judice for the reason, that it exceeded the jurisdiction vested in it which is not sustainable in the eye of law.

3. The learned D.R. has opposed the arguments advanced by the learned A.R.

4. We have heard the learned counsel for both the parties and have also gone through the relevant orders. The learned D.R. has not been able to rebut the assertions made by the learned A.R. Admittedly, the plea of the appellant relating to the disputed sales tax amount in question which has already been accepted by the learned Collector Sales Tax (Appeals) in the first round of litigation. There is no denying the fact that the issuance of show-cause notice regarding the same period amounts to imposition of double taxation which could not be given legal credence. We also find ourselves in agreement with the assertions made by the learned A.R. that very assumption of jurisdiction was also vide ab initio because as per section 45, the Assistant Collector Sales Tax (Refund) has been vested with the powers to deal with the cases involving amount of Rs.1(M) and not more than that.

5. In the light of aforesaid discussion, we do hereby accept the appeal of the registered person, vacate the show-cause notice to the extent of amount about which the findings were given by the learned Collector Sales Tax (Appeals) vide its order dated 8-1-2007 in the first round of litigation.

6. Resultantly, order-in-original as well as order-in-appeal is set aside. Appeal succeeds. S.A.K./167/Tax(Trib.) Appeal accepted.