Appeal to Appellate Tribunal

Appellate Tribunal granted stay order to provide temporary relief to the appellant from 'undue hardship' till disposal of main appeal.

Department sought vacation of stay granted by the Tribunal wherein the operation of order passed by the Federal Board of Revenue (FBR) under S.40B of the Sales Tax Act, 1990, was suspended till the outcome of appeal and the department was restrained from proceeding further

Validity

Appeal filed by the registered person was not maintainable as S. 46 of the Sales Tax Act, 1990 did not give any right of appeal to the registered person to file an appeal before the Tribunal against an order passed by the FBR under S.40B of the Sales Tax Act, 1990

No statutory right of appeal was available to the registered person

Application of department was accepted and order passed by the Tribunal was vacated.

Petitioner complained of coercive measures being adopted by respondents under the garb of impugned notices and contended that his fundamental rights of trade and business guaranteed under Art. 18 of the Constitution would be infringed

Validity

High Court as a stop-gap arrangement granted temporary relief to the petitioner by directing Appellate Tribunal to decide the appeal of petitioner in accordance with law, within a period specified under the Anti-Dumping Duties Act, 2015

Tribunal was also directed to decide the interim relief application of the petitioner at the first instance preferably within a period of one week

Till decision of application for interim relief by the Appellate Tribunal, no coercive measure was to be taken against the petitioner

Constitutional petition was disposed of accordingly.

Section 73 of the Anti-Dumping Duties Act, 2015, clearly states that the Tribunal shall handle appeals as priority and issue direction within 30 days by giving day to day hearing as per S.70(6) of the Act

Tribunal may pass order if it thinks fit while examining appeal under S. 70(7) and shall give decision in writing/detailing the issue raised in the appeal with the reasons as provided under S. 70(1)

After decision on the stay application as well as the Appeal the Tribunal shall provide copy of the order, which is appealable under S. 70(13) before High Court within 90 days.

Appellant filed application for grant of stay along with supporting appeal for the third time against the same order of refusal to stay the recovery of tax demand by the Commissioner (Appeals)

Validity

Appellant's appeal was barred by time

Appellant had no locus standi to file the appeal against the same cause of action which was decided twice by the Appellate Tribunal

One who knocked at the door of the court had to come with clean hands

Application along with the supporting appeal were dismissed.

Appeal of the registered person/applicant against remand order of Commissioner (Appeals) was pending adjudication before the Tribunal but in the meantime the department had initiated re-assessment proceedings in pursuance of that appellate order, despite the fact that the appeal of the registered person had not gone through the scrutiny by an independent judicial forum

Appeal of the applicant assailing the treatment meted out by first Appellate Authority was pending for decision before the Tribunal

Tribunal directed the department to wait for the decision of Tribunal

Application was disposed of accordingly.

Had it been the intention of legislature to bar the jurisdiction of the Appellate Tribunal on such issue, a specific provision barring the same would have been inserted in the Punjab Sales Tax on Services Act, 2012 or Rules made thereunder

Appellate Tribunal allowed the appellant to submit additional grounds.

Appellant assailed order of Collector of Customs (Adjudication) whereby he had confiscated the goods imported by appellant

Appeal filed by appellant was barred by time and the reason assigned by the appellant for delay in filing appeal was that he was infected with chikungunya virus and was advised by the doctor to take complete rest for a period of two months

Appellant had produced medical certificates issued by the concerned doctor

Validity

Movement of the infected person while suffering from chikungunya virus came to zero due to pain in joints and high fever and the only cure was complete rest, which the doctor had advised to the appellant

Appellant had done the needful when he was able to move, therefore, delay in filing appeal was condoned by the Appellate Tribunal.

Reference application, being without merits, was dismissed.

Permanent employees of the Department performing duties at a Camp Office claimed that they be granted "Big City Allowance"

Department having refused to the grant same, the employees filed grievance petition and Labour Court after recording oral as well as documentary evidence of the parties, found the employees entitled to all the facilities of Head Office including "Big City Allowance"

Validity

Government on the recommendation of Finance Division issued a notification and declared nine cities of the Province as "Big Cities"

According to notification, the employees of said big cities were held entitled to receive House Rent Allowance at 45% of the initial pay along with conveyance allowance

"Big City Allowance" was payable to the employees of only those cities which had been declared big cities

Place where the employees were working, did not fall within the definition of "big cities" because it was a remote area situated far away from 'a Big City'

Employees, who had been receiving "Big City Allowance", if transferred at a place outside big city, would not be entitled to receive "Big City Allowance" for the period they remained out

Similarly the employees of a city, which did not fall in the definition of Big City, could not claim "Big City Allowance" on the ground that an employee who had been receiving "Big City Allowance" had been transferred to a city which was not included in the list of Big Cities

Payment of "Big City Allowance", did not fall amongst the disputes known as industrial disputes

Appellate Tribunal or the Labour Court lacked jurisdiction to award Big City Allowance to a worker performing his duties in an industrial or commercial establishment

Said worker should approach appropriate forum to achieve his claim

Impugned judgment passed by Labour Court was set aside

Appeal was accepted and grievance petition filed by the employees, was rejected in circumstances.

If Division Bench of the Appellate Tribunal was not agreeable to an earlier pronouncement of law by a Bench of equal strength, it could refer the matter to the Chairman of the Appellate Tribunal stating the reason of dissent to form a Larger Bench for resolving the controversy through speaking order.

Section 194-A of Customs Act, 1969, had prescribed the time limit of 60 days from the date on which the decision or order sought to be appeal against was communicated to the Collector

Appeal filed after lapse of 60 days from the date of which the order under S. 179 of the Customs Act, 1969 was served on the Collector, would be barred by time

Appeal would be deemed to have been properly filed when annexed with challan of one thousand rupees, which was not done in the present appeal

Appeal, not validly and legally filed, was not maintainable

When the law had prescribed method for doing a thing in a particular manner, such provision of law was to be followed in letter and spirit

Attaining the objective of performing or doing of a thing in a manner other than provided by law, would not be permitted.

Appeal was objected to, contending that same could not be heard for decision, unless the imposed fine and penalty was paid by the appellant as expressed in S.195-B of the Customs Act, 1969

Validity

Section 195-B of the Customs Act, 1969, being directory and permissive in nature, appeal could not be dismissed on the basis of non-deposit of imposed fine/penalty

Section 195-B of the Customs Act, 1969, while directing the deposit of amount of duty in respect of goods, which were not under the control of Customs Authority or any penalty levied under that Act, though had used expression "shall", but no consequences followed in the expression for non-compliance

Section 195-B of the Customs Act, 1969 was deemed to be directory and not mandatory.

Expression "person aggrieved" employed in S.194-A of the Customs Act, 1969, had a wider connotation than the expression "party aggrieved"

Expression "person aggrieved" had to be construed only in the context of the statutory scheme of the Customs Act, 1969 particular in the context of S.194-A.

Petitioners/department had not been able to give sufficient reasons for condonation of delay, but attributed the delay to the department and to the administrative issues

If there was any lapse on the part of the department, proceedings were needed to be initiated against the delinquent official who caused loss to the government

Department, had not been able to show that any official, because of whom, delay was caused, was taken to task and was penalized

Normal litigant and the government had to be treated at par and no extra premium could be given to the Government department; especially so, when the department authorities failed to make out a reasonable ground for condonation of delay

Impugned judgment was upheld and Constitutional petition was dismissed.

Tribunal being a sub-ordinate court to the High Court, was bound to follow the order of High Court and could not grant further stay

Stay application of the taxpayer, was misconceived and devoid of merit.

Assistant Commissioner Inland Revenue, finding taxpayer to have paid short sales tax, and directed the taxpayer to deposit sales tax along with default surcharge and penalty under S.33 of Sales Tax Act, 1990

Direct appeal to Appellate Tribunal

Validity

Under S.45-B of Sales Tax Act, 1990, appeal against order of Assistant Commissioner, was to be filed before Commissioner Inland Revenue (Appeals)

Appeal directly filed before Appellate Tribunal, was not maintainable

Commissioner Inland Revenue (Appeals) could condone the delay in filing of appeal because of bona fide mistake of counsel of taxpayer by filing appeal before wrong forum

Taxpayer could not be made victim of his counsel's mistake.

While filing appeal, it was mandatory for tax payer to send briefs consisting of grounds of appeal, assessment order, appellate order and a copy of appeal memo and it may be ensured by the higher authorities that Departmental Representatives appearing must be well prepared and with all relevant records so that they may protect interest of revenue and assist in dispensation of justice.

Duty of Departmental Representative was very noble and sacred one and they were entrusted with a duty to be performed in court

Departmental Representatives were only agents or trustees of department in one sense but also an Officer of the court; they had three fold duties; one towards department/FBR/Government another towards the court and third towards the opposing counsel.

Appellate Tribunal Inland Revenue, like any judicial body, had a number of procedural requirements to be complied with before an appeal could be heard

Departmental Representatives neglect to comply with requirements, decency, decorum of court craft and court culture and also by-passing interest of revenue with result that their matters get adjourned and they waste their own time and that of department and of Bench also.

Notice under S.11(2) of Sales Tax Act, 1990 was issued to appellant for recovery of short paid sales tax from appellant during relevant tax period

Appellant submitted reply to show-cause notice and denied allegation of short payment of sales tax

Appellant being a Wedding Hall, its activities during relevant period, were exempt from sales tax under the Khyber Pakhtunkhwa Province Sales Tax Ordinance, 2000 as amended by Khyber Pakhtunkhwa Act, 2005

Federal Board of Revenue, vide its Circular No.105(2)5-IR-111/211 dated 25-8-2011, had clarified that after said amendment in the Provincial Act, Wedding Halls activities were exempt from sales tax

Due to said exemption proceedings against appellant were void ab initio for being coram non judice

When services provided by marriage halls were exempt from sales tax, that would mean that all services which a marriage hall provided in the normal course of business, were exempt from sales tax

Deputy Commissioner, Sales Tax, had no authority under S.25 of the Sales Tax Act, 1990 to carry out audit of exempted activities

Appeal succeeded and impugned order was set aside, in circumstances.

Filing of appeal by the Assistant Collector of Customs-MCC of Preventive on the strength of affidavit and without authorization in writing from the competent authority

Validity

Federal Board of Revenue or Collector of Customs if aggrieved by an order passed by Additional Collector of Customs, could prefer an appeal to the Appellate Tribunal

Such appeal shall be preferred by an officer, not below the rank of Assistant Collector or Assistant Director so authorized in writing by the Board or the Collector or the Director as the case may be

Emphasis was on "aggrieved", "Collector" or "Director: & "authorized in writing" by the Board or the Collector or the Director

"Aggrieved person" denoted a person who had got a legal grievance i.e. a person illegally or wrongfully deprived of anything to which he was legally entitled to and Collector and Director meant Head of Collectorate or Directorate, whereas authorized in writing meant Board or Collector & Director were empowered on it or his behalf any of the Assistant Collector or Director to prefer appeal with the Appellate Tribunal and said authorization was to be filed with the appeal

Affidavit denoted that appeal had been filed by the Collectorate, which was non-entity by virtue of the fact that it was a department and could not be termed within the ambit of the word "aggrieved person", even otherwise Collectorate could not file appeal as the word "Collectorate" figure nowhere in the expression of S.194A(2) of the Customs Act, 1969

Fact of the matter was that the appeal had been filed by Assistant Collector of Customs-MCC of Preventive in his personal capacity and signed the appeal; confirming that he had no authorization of the Competent Authority i.e. Collector of Customs

Appeal was not to be deemed to have been validly filed in accordance with law and Assistant Collector filed such appeal without any lawful authority

Separate appeals had to be filed where there were two respondents

No appeal, in circumstances, had been filed against the respondent

Even otherwise, appellant had no locus standi to file appeal as per the expression of subsection (2) of S.194-A of the Customs Act, 1969

Appeals having not been had not been competently filed were not maintainable and were dismissed in limine.

Authority alleged that appellant/supplier had made supplies to unregistered person and issued invoices to registered buyer just to avoid payment of sales tax at 6% under S.R.O. 283(I)/2011 dated 1-4-2011 and S.R.O. 1125(I)/2011 dated 31-12-2011

Adjudication proceedings were initiated by Adjudicating Authority by way of issuance of a show-cause notice to show as to why amount of sales tax could not be recovered from appellant under S.11(3) of Sales Tax Act, 1990 on account of output tax along with default surcharge under S.34 and penalty under S.33 of Sales Tax Act, 1990

Despite production of record, at both lower forums, appellant failed to get any relief

Validity

Pre-requisite for availing benefit of zero-rating under said Notifications, three conditions were to be fulfilled for a qualifying person (i) doing business in five major zero-rated sectors; (ii) registered under Sales Tax Act, 1990 as manufacturer, importer, exporter or wholesalers and (iii) appearing on an Active Taxpayer List

All those conditions had duly been met with by the appellant; as the person to whom supplies had been made, was doing business in five notified major zero-rated sectors

Held, that supply of "yarn" being notified textile goods fell in five major zero-rated sectors

Benefit of notifications was available to the person doing business in textile and articles thereof

Delegation of powers for operation of bank account to any person, other than owner, but by the authority and consent of owner, could not be termed as 'tax fraud' as defined under S.2(37) of Sales Tax Act, 1990, without establishing any act of dishonesty and fraudulence by the registered person itself

Any record/documents produced by taxpayer during the course of adjudication proceedings, either at the original stage or at the appellate stage, if not discussed and controverted, and had gone unchallenged and unrebutted by the tax functionaries, would itself amount to admission of its legality and authenticity

Supplies made by appellant pertaining to the period when alleged buyer was an operative/active person and not included in the list of blacklisted units; and his subsequent inclusion in that very list of blacklisted units could not operate retrospectively

Beneficial executive order and notification issued by an Executive Functionary could be given retrospective effect

Where any adverse finding was given in the adjudication order on the allegations or violation of provisions of law, which were not incorporated and confronted in the show-cause notice, the entire proceedings would be rendered as illegal and void for reason of breach of natural justice, which was also breach of law

Impugned orders passed by authorities below being suffering from grave legal infirmities, were declared to be illegal, void ab initio, and were set aside, in circumstances.

Appeal, earlier filed by taxpayer, was disposed of by Tribunal, holding that action of Taxation Officer under S.122(5-A) of Income Tax Ordinance, 2001 for the relevant tax year was not sustainable in the eyes of law

Orders of both the authorities below were vacated by the Tribunal and appeal of taxpayer was accepted

Reference filed by department against judgment of Tribunal, was disposed of by High Court, holding that questions of law raised in the Reference had already been answered by the Supreme Court

Provisions under S.133(5) of Income Tax Ordinance, 2001 though required furnishing of a copy of that judgment to Tribunal, but no further action was called for in circumstances

Copy was required to be sent for the purpose of record only

Proceedings in the case, were ordered to be filed.

Taxpayer had alleged that Adjudicating Authority had made the combined addition under S.21(c)(m) of Income Tax Ordinance, 2001, which itself was illegal ab initio void; that issue related to time difference was not properly adjudicated by Adjudicating Authority, without any specific default and that Appellate Authority had failed to give findings on the issue, despite the fact that said ground was raised before the Authority

Validity

Appellate Authority, having not adjudicated the issue although the taxpayer had raised that ground at the first appellate stage, case was remanded to the said Authority to adjudicate the matter on the issue, and give clearcut findings after providing an opportunity of hearing to both the sides

Order accordingly.

Adjudicating Authority inferred that no evidence was provided that payments were made through proper Banking Channel, and authority proceeded to disallow the amount under S.39(3) of Income Tax Ordinance, 2001; as the taxpayer had failed to furnish any reply

Appellate Authority confirmed the treatment meted out by the Adjudicating Authority

Plea of taxpayer was that Adjudicating Authority was requested to allow submission of evidence, which was rejected and best judgment order was framed without honouring request for adjournment

Taxpayer, explained that the income under review, consisted of Rs.69,691,000 which was outstanding against provident fund and salaries payable

Balance amount of Rs.3,045,000 was received through the proper Banking Channel

Matter had not been properly adjudicated by the authorities below; and addition had been made in a slipshod manner

Case was remanded to Assessing Officer for de novo consideration in accordance with the law for fresh adjudication

Order accordingly.

Matter being highly sensitive and of national importance, delay in filing appeals was condoned by the Appellate Tribunal.

Counsel for employers had submitted that impugned judgment was not announced by the Labour Appellate Tribunal in open court, therefore, same was not a valid judgment and that judgment was passed on sympathetic grounds

Validity

Judgment was written and signed by Appellate Tribunal on the same date when it was announced; in view of what was written at the end of the judgment that it was announced on the date which was stated to be date of judgment, no interference was called with impugned order on that count

Tribunal had scrutinized evidence and grounds for termination of the employees; and had decided the matter thereafter

Submissions of counsel for the employers was not relevant, in circumstances.

Application was filed for further stay against the recovery of tax demand on the ground that earlier stay was granted for a period of 30 days

Appellate Tribunal observed that registered person had already availed stay for a period of 210 days

Taxpayer had already availed complete period of stay to restrain the coercive measures; in fact, registered person was seeking stay by misrepresentation and dishonestly, which could not be considered as reasonable ground for, further grant of stay

Stay sought for, was rejected by way of dismissal of miscellaneous application by the Appellate Tribunal and office was directed to fix the appeal at an early date as per roster arrangement.

Taxpayer contended that department was pressing hard for recovery and had issued notice showing intention to take coercive measures for the recovery of the outstanding tax demand; that in case the demand was not stayed, the taxpayer will suffer irreparable loss; and that taxpayer had full evidence to prove compliance of the law

Validity

Request for stay of demand was justified in circumstances

Recovery of tax demand was stayed by the Tribunal for a period of 30 days from the date of receipt of the order

Departmental order for recovery proceedings was vacated with the direction to the First Appellate Authority to preferably decide the pending appeal within 30 days as per law and facts of the case and till that time, the department was restrained from recovery proceedings

Application for stay was allowed without prejudice to the final outcome of the appeal which was pending before the First Appellate Authority.

Representative of the taxpayer appeared and contended that case was adjourned for 21-6-2012, however in the diary he inadvertently noted the date of hearing as 22-6-2012 instead of 21-6-2012 and could not attend the hearing on 21-6-2012, his non-appearance was neither deliberate nor wilful; and that appeals of the taxpayer be recalled and decided on merits

Validity

Case was adjourned for 21-6-2012 and the adjourned date was duly noted by the Authorized Representative on the order sheet; miscellaneous application had been filed without any instructions from the taxpayer, as it was not supported by an Authority Letter or Power-of-Attorney from the taxpayer, matter being a fresh cause of action; application had neither been signed by the taxpayer nor it bore the seal of the registered person; contents of the application were not supported by an affidavit of the applicant as required under R. 13 of the Appellate Tribunal Inland Revenue, Rules, 2010 and the provisions of O. VI, R. 15 C.P.C. read with High Court (Lahore) Rules and Orders; applications had been filed without impleading the necessary and proper parties as required under R.9 of the Appellate Tribunal Inland Revenue, Rules, 2010; under the law only Commissioner Inland Revenue was necessary party in whose absence no effective adjudication could be made, whereas the applicant impleaded the Additional Collector, Customs and Sales Tax; it was alleged that "the titled appeal came up for hearing on 21-6-2012 which was dismissed, while the fact of the matter was that no appeal of the taxpayer was fixed for judicial scanning or dismissed on 21-6-2012 and original appeals were disposed off vide order dated 12-10-2011; actually, vide order dated 21-6-2012, taxpayer's miscellaneous applications were dismissed for want of prosecution; taxpayer's hands were smeared with suppression of material facts as main appeals were disposed of vide order dated 12-10-2011; and later on, the taxpayer moved application for recalling of order dated 12-10-2011, which was dismissed for non-prosecution on 6-2-2012; and taxpayer again filed miscellaneous application for recalling of such application, which was accepted and said miscellaneous application was restored to its original number vide order dated 16-4-2012; and miscellaneous application was again dismissed for non-prosecution vide order dated 21-6-2012; and all these important facts were not only withheld rather concealed by the taxpayer while institution of present miscellaneous application

Application had not been filed by the taxpayer in accordance with the mandatory and imperative provisions of law and rules made thereunder

Such application was dismissed by the Appellate Tribunal being "not maintainable" and misconceived.

Stay application was supported by an affidavit which concealed the fact of stay period of 120 days already granted by the Appellate Tribunal during the pendency of main appeal and failed to disclose the fact of another stay application pending before the Appellate Tribunal

No authority/power-of-attorney was given to the authorized representative to present before the Appellate Tribunal

Rectification application having been dismissed , present stay application had become in fructuous and disposed of accordingly.

Deficiencies in stay application were that application had been filed without any instructions from the registered person, as it was not supported by any Authority letter or Power-of-Attorney from registered person; that through letter filed by an unauthorized person, it was alleged that the hearing of appeal never took place, whereas the record reflects that the appeal was heard, that presumption of truth attached to the official record unless proved otherwise; that contents of the rectification application were not supported by any duly sworn affidavit of the registered person; that application had never been signed by the registered person nor the same bore the seal of the public limited company/registered person; that no court fee had been affixed on the face of the application/letter; that application/letter had been addressed to the Registrar of Appellate Tribunal, which was contrary to the provisions of Ss.2(2) & 130 of the Income Tax Ordinance, 2001 and Rules of Appellate Tribunal; that application had been filed without impleading the necessary and proper parties; that application had been filed without annexing the necessary documents as required under R.11 of the Appellate Tribunal Inland Revenue and that application was filed under S.57 of the Sales Tax Act, 1990 and at the relevant time such provisions related to correction of clerical or arithmetical error in any assessment, adjudication, order or decision passed by the Officer of Inland Revenue

Expression "Officer of Inland Revenue" had been defined in S.2(18) of the Sales Tax Act, 1990 which meant an officer appointed under S.30 of the Sales Tax Act, 1990

Order passed by the Appellate Tribunal Inland Revenue could not be considered as order passed by the Officer of Inland Revenue and did not come within the ambit of the provisions of S.57 of the Sales Tax Act, 1990

Appellate Tribunal held that, in such circumstances, the application had not been filed by the registered person in accordance with the provision of law and the rules made thereunder and the same was dismissed being "not maintainable" and misconceived

Applicant company, however, may file a fresh rectification application after complying with the statutory provisions and rules made thereunder.

Taxpayer had already availed stay period of 120 days granted by the Appellate Tribunal during the pendency of main appeal, but this fact was concealed in the present stay application

Main appeal had already been decided by the Appellate Tribunal and no appeal was pending adjudication

Application for stay was misconceived and the same was rejected by the Appellate Tribunal being devoid of merit.

Tribunal dismissed appeal in circumstances.

Affidavit in support of appeal filed by Deputy Collector Customs (Law) to the effect that he was authorized by Collector of Customs (PaCCS) through Office Order dated 10-9-2007

Validity

Cause of action to file appeal had arisen in March, 2013

Such Office Order had been drafted much earlier than accrual of such cause of action

Appellate Tribunal dismissed appeal in circumstances.

Contention of the Customs authorities was that affidavit accompanying appeal was not signed by appellant, therefore appeal was not maintainable

Validity

Appellant had engaged an advocate and executed power of attorney/ vakalatnama in his favour and authorized the advocate to prepare the appeal and put his signature thereon and file with the appellate authority

Appeal and affidavit had been signed by the Advocate on the strength of vakalatnama

Appeal could not be dismissed as not maintainable on the strength of technical objection which tantamount to denying justice

Appeal was validly filed and maintainable

Objection raised by the respondent customs authorities was overruled.

Departmental Representative contended that Tribunal could grant stay against recovery of tax demand for a period of one hundred and eighty days in aggregate, whereas in the present case one hundred and eighty days had expired and no further stay could be allowed; and that stay order had been allowed without mentioning any period which was against the provisions of law

Taxpayer contended that Tribunal (Accountant Member) confirmed the order of adjudicating authority on three issues while on the fourth issue order-in-original had been set aside by way of remand order; that in contrast Tribunal (Judicial Member) vacated the order on the first three issues and on fourth issue agreed with the Accountant Member; that even if the order of the Accountant Member was taken, there could be no demand arising out of the adjudicating order; that at least on one issue the order had been set aside by way of remand and in the light of view of Judicial Member all of the issues involved had been proposed to be set aside; that rectification application was not maintainable as no demand in law existed which the department was threatening to be recovered; and that rectification application be rejected

Validity

Case of the taxpayer was pending before Appellate Tribunal for no fault of the taxpayer but due to the reason that the final order could not be passed on account of difference of opinion among the Judicial and Accountant Member and the matter was still pending for appointing the referee Member

Both the Members had set aside the matter for fresh consideration on the specific issues, meaning thereby that no demand in law existed and no recovery could be made by the department

Appellate Tribunal directed the department that no coercive action be taken against the taxpayer

Order of Appellate Tribunal was upheld and application filed by the department was dismissed by the Appellate Tribunal.

Customs Authorities raided the godown acquired by the appellant and recovered smuggled foreign origin ladies art silk cloth having marks of "in transit to Afghanistan via Karachi"

Customs authorities asked the appellant to produce legal import documents in support of lawful possession of the recovered goods but he failed to produce the same, consequently the recovered goods were seized and the appellant was issued show-cause notice

Appellant took the stance that he had purchased the recovered ladies art silk cloth from open market without the cover of legal import documents and as such the same could not be treated as smuggled goods

Validity

Appellant right from the stage of detention/seizure and adjudication proceedings failed to place on record the purchase receipt in support of his contention that he had purchased the goods in question from open market

Appellant had also taken the plea that he had neither been given nor he had obtained any cash memo or bill from the seller of the goods

Charge levelled in the show-cause notice had established against him by virtue of the fact that he had failed to discharge burden of proof laid upon him

Appeal was dismissed.

Order-in-original should have been passed within 120 days from the date of issuance of show cause notice or within a further extended period of 60 days due to emergence of "exceptional circumstances" prior to the expiry of initial period of 120 days after serving a notice to the person concerned

Order-in-original was passed after the expiry of entire period of 180 days without any extension prior to the expiry of 120 days

Order-in-original was silent in respect of extension of time

Order-in-original was barred by time and as such was without power/jurisdiction and not enforceable under law

Impugned order was set aside

Appeal was allowed.

Extending time by the Board was akin to giving a new lease of life into dead entity which tantamounted to flogging a dead horse

Event or documents had become dead on account of non-timely extension of time period prior to expiry of stipulated period was legally considered dead and new spirit could not be infused into it by any means or on account of any reason whatsoever

Impugned orders were set aside

Appeal was allowed.

Customs officials had taken stand that Board had extended the prescribed time period and mere non-observance of time limit would not render the lawful act as illegal

Validity

Customs authorities were not performing their duties under the Constitution but under the provisions of Customs Act, 1969

Any act done contrary to the provisions of said Act render the whole exercise nullity and ab initio void on account of suffering from lack of power/jurisdiction

Impugned order was set aside

Appeal was allowed.

Order-in-appeal should have been passed by the Collector of Customs (Appeals) within 120 days from the date of filing of appeal or within a further extended period of 60 days prior to the expiry of initial period of 120 days with reason to be recorded for extension in writing

Collector of Customs (Appeals) had not extended time period of decision prior to expiry of initial period of 120 days instead he granted extension after the expiry of said period

Extension granted by the Collector of Customs (Appeals) was without lawful authority as time had been extended after the lapse of initial period of 120 days

Order-in-appeal was barred by time

Impugned orders were set aside

Appeal was allowed.

Clearing Agent/appellant was imposed a penalty in pursuance of show-cause notice on the charge of contravening the provisions of S.129 of the Customs Act, 1969

Appeal filed by Clearing Agent before Collector of Customs (Appeals) was dismissed

Contention was that no charge could be levelled against appellant under machinery provisions of law

Validity

Show-cause notice was served under S.129 of Customs Act, 1969 which was not a charging section rather the same was simply a machinery provision

No show-cause notice could be issued by any authority under S.129 of the Customs Act, 1969

No Rules were made under S.129 of the Customs Act, 1969 for (Afghan Transit) Trade at the time of issuing show cause notice

Show-cause notice had not mentioned any Rules which were contravened by the Clearing Agent

Order of adjudication being ultimately based on a ground which was not mentioned in show-cause notice was palpably illegal on the face of it

Appeal was allowed.

Importer of foreign country had imported consignments without payment of customs duty and other leviable taxes for onward transit to Afghanistan/foreign country through the appellant Clearing Agent

Customs authorities handed over the goods to the appellant Clearing Agent for transportation to foreign country/Afghanistan

Subsequently, the customs authorities asked the appellant Clearing Agent to submit the requisite cross border certificate in respect of the consignments

Appellant Clearing Agent failed to submit cross border certificate to the effect that the goods had crossed the border of Pakistan which meant that goods were consumed inside Pakistan, causing loss to the government exchequer

Customs authorities after serving show-cause notice had imposed a penalty on the appellant Clearing Agent for violating the provisions of S. 129 of the Customs Act, 1969 and causing loss to the government exchequer

Appeal filed by Clearing Agent was dismissed by the Collector of Customs (Appeals)

Contention of the appellant was that being Clearing Agent he was not responsible for submitting cross-border certificate and as such the penalty was illegal

Validity

Consulate General of foreign country/Afghanistan submitted an authority letter/undertaking to the Collector of Customs (Appraisement) for clearance and transportation of transit goods

Consulate General also undertook that the cargo in transit to Afghanistan would not be used/consumed in Pakistan and Cross Border Certificate would be furnished within fifteen days of its crossing the border

Consulate General authorized the Clearing Agent/appellant for clearance of the goods from Karachi port to transit to Afghanistan

Clearing Agent got the goods cleared from Karachi port and handed over to the National Logistic Company for trans-shipment, thereafter the job of Clearing Agent was concluded and it was for the Consulate or the Border Agent to submit Cross Border Certificate to customs

Impugned order of imposing penalty upon appellant clearing agent was declared as null and void

Appeal was allowed.

Contention of counsel for appellant was that hierarchy of the customs, the Additional Collector of Customs and the Collector (Appeals), had not taken up the subject matters which pertained to legal and factual controversy, in accordance with the law, and on the contrary the case was decided arbitrarily without applying judicious mind, but on the principle of mutatis mutandis; and disposed of the matter without discussing the factual as well as the legal controversies as placed by the counsel for appellant orally or in writing

Customs authorities were required to pass separate orders in each case and the litigants had a right to contest their case, which should be disposed of on its legal and factual positions separately

Action taken by the Authority against the appellant was violative to S.194-B(1) of Customs Act, 1969

Appellant had established the prima facie case, balance of convenience, was also in favour of the appellant, which would also cause irrecoverable loss to the appellant

Authorities were directed by the Appellate Tribunal that no coercive action should be taken against the appellant till the next date of hearing.

Before taking any punitive action against any person, he was required in the first instance to be served with a show-cause notice confronting the material available on record in support of the charge; any action which was in violation of such principle of natural justice, 'audi alteram partem', the same would be void ab initio.

Representative of Department was marked present, after noting attendance and without hearing either side, judgment was reserved

Subsequently, judgment was announced and appeal was dismissed on merits

Application for recalling the order by following the principles of natural justice and propriety and that appellant should be given an opportunity of being heard before deciding the appeal afresh

Validity

Appeal was simply adjourned and it was not clearly fixed for arguments

Adjourned date might be a date for further proceeding

Such date could not be styled as a "date of hearing"

Word "hearing" implies taking down of evidence or hearing arguments or where question relating to determination of case was considered

Unless Court was satisfied that it was date of hearing of the lis, it was not permissible to dismiss the same even for non-prosecution

Appeal was simply adjourned and on the later date nothing effective and germane to progress of appeal could be intended as productive functioning, constituting a step forward in matter rather than mere fixation of date for formal proceedings

Rules of procedure were not to be too technically applied but were construed to foster cause of justice

Courts had always preferred decision of cases on merits instead of knocking out a party on technical grounds

Appellate Tribunal had powers inherent in it to keep the proceedings in correct and legal parlance

Application was bound to succeed and was accepted by the Appellate Tribunal with the payment of Rs.5000 as cost

Original appeal was restored for regular hearing which was to be fixed for hearing for a date under intimation to both the sides by issuance of separate hearing notices under registered post as per rules.

Amendment in S.46 of the Sales Tax Act, 1990 had been made by the Finance Act, 2006 whereby in subsection (1) of S.46 of the Sales Tax Act, 1990 for the word "the Sales Tax Department", the words "an officer of Sales tax not below the rank of Additional Collector" had been substituted and it was to be decided as to who was competent to file appeal on behalf of the Sales Tax Department at the relevant time

No authorization or general delegation of powers giving the specific authorization to file the appeals had been given to the Assistant Collector in the absence of which, it shall be safe to presume that the Assistant Collector had not been delegated the powers of filing the appeals before the Appellate Tribunal

Assistant Collector of the relevant time was not competent to file the appeal on behalf of the Sales Tax Department

Appeal was not maintainable within the provisions of S.46 of the Sales Tax Act, 1990 as it stood at the relevant tune.