2012 PLP (Trib (PTD)

This appeal has been filed by the registered person against the order of the learned CIR(A) No.194/2010 dated 18-10-2010.

2. The brief facts of the case are that post refund audit was conducted in which it was found that for the periods June, 2004 and August, 2004 the taxpayer had claimed input on invoices issued by Adeel Packages amounting to Rs.99,

782. This was done on the basis of the Adeel Packages being declared blacklisted on 29-12-2007. The registered person had been allowed the refund of Rs.99,

782. Accordingly through show cause notice dated 4-11-2008 the appellant was charged with violations of sections 4, 7, 8, 8A, 10, 22, 26 and 73 of the Sales Tax Act, 1990 read with relevant Refund Rules. The registered person was also called upon to state as to why the impugned amount should not be recovered under sections 11(2) and 36(1) of the Sales Tax Act, 1990. Intention of levying penalty and default surcharge under sections 33 and 34 of the Sales Tax Act was also communicated to the registered person through the impugned SCN. Order in original was passed on 29-3-2010. The appellant being aggrieved preferred an appeal before the learned CIR(A), Faisalabad and rejected the appellant's appeal thus this order is being assailed before the Tribunal. The case was argued at length by the learned counsel of the appellant as well as D.R. The latter argued that the FBR Refund Rules was a very unambiguous that once the status of blacklisted is assigned to any supplier then all the invoices issued by the alleged blacklisted person are deemed to be void and input allowed on such invoices is recoverable from the registered persons. The learned counsel of the appellant argued that an exparte order had been had been passed against the appellant and proper opportunity had not been granted to the appellant at the adjudication level. He averred that the notice was not served on the registered person or the authorized person. He also argued that the learned Commissioner (Appeals) order in appeal was prejudiced and biased and he has discriminated against the appellant and in other appeals he has allowed relief on the same issues to other registered person. It was also argued that the order of blacklisting of the said supplier Adeel Packages was set aside vide Tribunal's order No.2292/LB/2009 dated 6-5-2010. Even otherwise the activity of taking input and claim refund and subsequent sanction of it relates to the periods of June and August, 2004 when the status of Adeel Packages was that of an active taxpayer and he was regularly filing returns. It has been held in a number of cases that notifications which adversely affect the rights of the registered persons cannot be applied retrospectively and have to be applied prospectively. The Refund Rules as communicated by F.B.R. vide S.R.O.No.555(I)/2006 dated 5th June, 2006 cannot be applied retrospectively.

3. Keeping the arguments in view we have no hesitation in ordering the vacation of the impugned order-in-original and order-in-appeal. We accept the appeal of the appellant. C.M.A./70/Tax(Trib.) Appeal accepted.