MESSRS ULBRICHT'S PAKISTAN LTD. VS DEPUTY COLLECTOR-II, CENTRAL EXCISE & LAND CUSTOMS,
KARACHI
1991 P T D 551
[Karachi High Court]
Before Saleem Akhtar and Muhammad Hussain Adil Khatri, JJ
Messrs ULBRICHT'S PAKISTAN LTD.
versus
DEPUTY COLLECTOR-II, CENTRAL EXCISE & LAND CUSTOMS,
KARACHI and 3 others
Constitutional Petition No.1003-D of 1988, decided on 02/01/1991.
(a) Sales Tax Act (III of 1951)---
----S.3(4)---Central Excise Rules, 1944, Rr.52-A, 210 & 226---Recovery of Sale tax on quantity of raw material not accounted for---Liability of assessee---Nothing was brought on record to suggest stealthy removal of raw material or manufacture of non-taxable product from such material---Charge-sheet served on assessee was presumptuous and imaginative in character---Authority passing order for recovery of sales tax had no material before it which could prove guilt of petitioner in evading sales tax ---Assessee on the other hand, had placed material on record to rebut the charge of evasion of sales tax---No case was, thus, made out against assessee to hold him guilty of evasion of sales tax.
(b) Constitution of Pakistan (1973)---
----Art. 199---Constitutional jurisdiction, exercise of---Constitutional jurisdiction was not to be normally exercised to interfere in orders of Tribunal or Authority having jurisdiction in a particular matter, but such jurisdiction would be well attracted in cases where any finding of fact was based on no evidence or was given ignoring materiala6vidence or on consideration of inadmissible evidence or in arbitrary exercise of jurisdiction or in case of material irregularity in the conduct of proceedings causing palpable injustice.
Nawaza v. Additional Settlement and Rehabilitation Commissioner Gujrat and others PLD 1979 SC'39; The Commissioner and others v. Mian Sher Muhammad 1972 SCMR 395; Rahim Shah v. Chief Election Commissioner of Pakistan PLD 1973 SC 24 and Swati Qaum v. Painda Khel Oaum 1 tt81 SCMR 318 ref.
(c) Sales Tax Act (III of 1951)---
----S.3(4) [substituted by Finance Ordinance, 1979)---Central Excises and Salt Act (I of 1944), S.12-A---Central Excise Rules, 1944, Rr.52-A, 210 & 226---Exemption from payment of excise duty--Effect---Where goods were exempt from payment of excise duty, sales tax would be payable thereon if Central Board of Revenue had so directed---Board of Revenue having not directed for the recovery of sales tax same was not recoverable by the Authority and show-cause notice served on assessee and subsequent proceedings for recovery of tax were nullity in law and without jurisdiction.
(d) Sales Tax Act, (III of 1951)---
----S.3(4)---Constitution of Pakistan (1973), Art.199---Sales-tax levied on assessee was based on no evidence and proceedings for recovery of same suffered from grave and material irregularities inasmuch as several orders and directions by Authorities for taking weights of products were repeatedly ignored---Proceedings for assessment of tax were thus, without lawful authority and same could not be sustained being illegal and without jurisdiction.
Muhammad Naseem for Petitioner.
Umar Qureshi for Respondents.
Date of hearing: 12th November, 1990.
JUDGMENT
MUHAMMAD HUSSAIN ADIL KHATRI, J.---The petitioner is manufacturer of Helmets, Hand-grenades, Safety Helmets, different kinds of Water-Coolers, Buckets and five other plastic products. The Petitioner in the process of manufacture uses raw material like plastic, Plastic Moulding Compound and other three chemicals. The petitioners were served with a show cause notice dated 2-11-1980 by the Deputy Collector-I of the Central Excise and Land Customs, Karachi which was said to have been issued on the basis of "on spot enquiries" conducted on 20-9-1980 by the Deputy Superintendent Directorate of Intelligence and Investigation (Customs and Excise) (hereinafter referred to as the Directorate) wherein following charges were levelled against the petitioner:--
(a) The official of the said Director had visited the premises of the petitioner to investigate and probe into the reported indulgence of the petitioner in evasion of Taxes by removing goods without payment of Sales Tax and without accounting for its products. It was alleged that the scrutiny of the accounts of products and raw material issued for the products revealed that the petitioner had maintained incorrect account of raw material and suppressed the actual production.
(b) It was stated that the petitioner manufactured eight items of plastic, using raw material consisting of Plastic Moulding Compound, Pigments and other three chemicals. To ascertain the actual quantity of raw material consumed in the manufacture of various items, the weight of one piece from each of the products was taken and the total quantity of raw material consumed in production of said goods was in the said manner calculated to be 75,532 Kgs. whereas, the total quantity of the raw material consumed during the period was shown in the record to be 1,27,690 Kgs. The difference of 52,096 Kgs. of raw material remained unaccounted.
(c) The aforesaid unexplained difference of 52,096 Kgs. of raw material was allegedly used in the production and had been clandestinely removed resulting in the loss of Government Revenue. Simultaneously it was alleged that the said quantity of the raw material must have been used in the manufacture of Water-Cooler No.3, which is more popular and costly brand than other products of the petitioner.
(d) It was further alleged that the aforesaid unexplained 52,096 Kgs. of raw material was used in manufacturing the most popular and costly brand terms as Water-Cooler No.3 in the said notice.
(e) It was further alleged that the value of the aforesaid brand of Water-Cooler manufactured from the aforesaid unexplained quantity of the raw material came to Rs.68,95,002 and the Sales Tax payable therefore at the rate of 20% ad valorem was evaded by the petitioner. Accordingly it was alleged that the petitioner had contravened the provisions of the Central Excise Rules, 1944 and Sales Tax Act, 1951 and was called upon to show cause as to why the Sales Tax in the sum of Rs.13,79,002 (wrongly typed as Rs.17,79,002) be not assessed and recovered from the petitioner under Rules 52-A; 26 and 210 of the Central Excise Rules, 1944 read with proviso to subsection (4) of section 3 of Sales Tax Act, 1951.
A chart showing the quantities of raw material used in each of the eight products was annexed to the said notice.
The petitioner submitted its explanation dated 5-1-1981 whereby all the allegations made in the show-cause notice were denied. The petitioner specifically pointed out miscalculations in weighments made in the chart annexed to the show-cause notice. Following are the salient features of the explanation given by the petitioner.
(a) The charge s show that the petitioner was manufacturing 8 items out of plastic moulding compound, whereas, the petitioner manufactured items. The charge did not include 2 items namely Hand-grenades and Safety Helmets, i.e. to say the quantity consumed in manufacturing the said two products was not calculated.
(b) The Register of raw material shows on 4-9-1980 the balance of 2,948 Kgs. of Plastic moulding compound after utilization of 7,500 Kgs. of the plastic moulding compound in manufacturing of Safety Helmet which item had been overlooked.
(c) According to the chart 22,871, 33,373 and 9,699 pieces of Bucket Nos.2, 3 and 4 respectively were manufactured, whereas according to the issued register 23,271, 35,175 and 19,361 pieces of the said items were manufactured.
(d) The department had overlooked the plastic moulding compound utilised in semi-manufactured Water-Coolers, as on 7-9-1980 and did not calculate the raw material used therein.
(e) With regard to respective weights of products it was stated that:
(i) According to Chart weight of Water-Cooler No.1 is 536 grams. Actually the weight is 1,180 grams.
(ii) Weight of Water-Cooler No.2 is shown 785 grams as against 1,530 grams.
(iii) Weight of Water-Cooler No.3 is stated to be 800 grams as against 1,738 grams.
(iv) Weight of Plastic moulding compound used in manufacturing hand-grenades utilising 700 grams per piece has been overlooked.
(f) Wastage of raw material in production of, each item was not calculated.
(g) The petitioner also challenged the jurisdiction of Deputy Collector Central Excise and Land Custom and action under the provisions of Central Excise and Salt Act, 1944 and Central Excise Rules, 1944 for recovery of Sales Tax.
The petitioner alongwith the aforesaid reply enclosed statements showing quantity bf each item manufactured during the period, their respective unit weights, total weight of raw material consumed in each product and semi-finished products, thereby establishing the actual use of raw material weighing 12,619 kilograms. Petitioner also enclosed separate statements water cooler Nos.1, 2 and 3 and Hand-grenades showing their respective gross and net weights and quantity of wastage of raw material in their production.
The Superintendent of the Directorate of Intelligence and Investigation filed his parawise comments to the above reply in which he conceded to production of Hand-grenades by the petitioner and deduction of raw material so utilized from the alleged unaccounted raw material and to further deduction of 5% on account of wastage. In the comments he did not agree to taking afresh the weight of each item as requested by the petitioner, for verification of actual weight of the respective products, for determining the raw material actually used, on the ground that taking of weights of the products at that stage would not reflect correct position. It was also alleged by him that the weights were taken in presence of one Mr. M.HA. Abbasi who according to him was Factory Manager of the Petitioner.
The petitioner during the proceedings brought it to the notice of the Deputy Collector that the said Mr. M.H.A. Abbasi was not the Factory Manager but an under-training Labour Officer and he had no authority to deal with the said Superintendent on behalf of the petitioner and sign the so-called statement of weighment of the products. It was further pleaded that no Mashirnama was prepared at the time of taking the so-called weights of the products.
At the earliest stage of the adjudication the Deputy Collector, Central Excise and Land Custom realized the importance of verifying the disputed weights of individual items for calculation of total raw material consumed in the products to substantiate and establish the charges against the petitioner and as it appears, he during the adjudication proceeding gave directions to the said Superintendent to, take the weights of the products of the petitioner but he failed to obey such orders which led to passing of order dated 16-2-1981 by the Deputy Director. The said order is reproduced below:--
"During the course of hearing dated 31-1-1981 the Defence Counsel of Messrs Ulbrichts had raised objection to the weighment sheet of the Deputy Superintendent Mr. S.M. Shamim of the Directorate of Intelligence & Investigation (Customs & Excise) Karachi. The Defence Counsel had also challenged the figures of manufactured goods as provided by the Deputy Superintendent alongwith the Contravention case. The Deputy Superintendent was directed to make weighment of the subject items making his own arrangement for weighment and report the same to me on 16-2-1981. The Deputy Superintendent has not complied with my orders accordingly.
The Deputy Superintendent is again ordered to conduct such re-weighment of items under dispute in the presence of the power of attorney-holder of the factory making his own arrangement for re-weighment according to his own satisfaction; this re-weighment statement; should be signed by the Deputy Superintendent as well as the power of attorney-holder of the factory and submitted to me on 11-3-1981 at 11.00 A.M. which is now the next date of hearing."
The process of weighment was again not carried out as directed by the above order. The learned Deputy Collector passed the undated order which was despatched on 17-9-1985 wherein he concluded that there was no reason to take weights of the products afresh, that the petitioner was guilty of maintaining wrong account of raw material and thereby surreptitiously manufactured and removed 44,500 pcs. of Water-Cooler valued at Rs.50,06,250 without payment of Sales-tax amounting to Rs.10,01,250 in violation of Rules 9, 52, 52-A and 226 of Central Excise Rules and was liable to punishment under Rules 52-A, 226 and 210 of the said Rules, read with section 3(4) of the Sales Tax Act, 1951 and accordingly imposed penalty of Rs.10,000 on the petitioner.
On appeal filed by the petitioner the respondent No.2 dismissed the same observing as under:--
(a) The order dated 16-12-1981 passed by the Deputy Collector for taking weights afresh of the subject items, was not complied with by the department.
(b) That the Senior Intelligence Officer by his letter dated 8-3-1981 had refused to follow the order of Deputy Collector contending that such an exercise would falsify his case.
(c) That the department had not verified correctness of the prosecution case by referring to the Returns of the relevant period filed by the petitioner.
The Revision filed by the petitioner was dismissed by order dated 9-10-1986 with following observation and direction:--
"As such the revision application seems to be premature and the case is remanded to concerned Deputy Collector of Central Excise, Karachi, for de novo consideration with the direction that an expert relating to the field of inquiry may be associated alongwith a representative of the applicants to ascertain the quantity of the raw material used in the production of the goods in question during the relevant period."
The matter was then taken up by the new incumbent of the office who also in his letter dated 16-6-1988 pointed out that the Directorate's staff had been avoiding the attendance and further stated that they had to make verification and carry out examination but they had failed to do so and directed the Deputy Collector of the Directorate to take necessary action in above respect. It appears the Directorate did not comply with the said order and failed to verify the weighments of the, subject goods. The Deputy Collector, however, passed order dated 17-8-1988 wherein, he reached the conclusion that the petitioner was guilt of the charges framed against it and ordered recovery of Rs.10,61,000 a outstanding Sales Tax under rule 10 of Central Excise Rules, 1944 and also imposed penalty of Rs.10,000 on the petitioner.
The petitioner then filed the present petition challenging the aforesaid orders and the proceedings initiated against it. The learned counsel for the petitioner has raised following contentions before us:--
(a) The petitioner has been found guilty of the charges in absence of any evidence whatsoever. The only material before the Deputy Collector consisted of the report dated 20-9-1980 which was vehemently denied and rebutted by the petitioner and cannot be treated as evidence against the petitioner.
(b) At the relevant time the respondents had no jurisdiction to levy or collect Sales Tax on the goods in question under the provisions of the Central Excises and Salt Act, 1944 and Central Excise Rules of 1944 and that the respondents have acted without jurisdiction and lawful authority.
The allegations levelled against the petitioner to be precise, are that the petitioner had shown in record consumption of 1,27,690 kgs. of the raw material in the manufactured products, but according to the weights of various product taken by the Directorate showed that only 75,532 kgs. of raw material was used in the production of the alleged quantities and difference of 52,096 kgs. was utilised in manufacturing particular brand of Water-Cooler No.3. The petitioner denied the said allegations; disputed respective weights of all products and the quantities manufactured pointing out the actual weight of the products and the quantum of the raw material used in each of the products thereby established that the afore-stated quantum of the raw material was consumed in the production as shown in the record. The correctness of either of the two versions with regard to the weights of different products could have been determined by taking the respective weights of the products. The importance of determination of the weight was realised at the earliest stage of adjudication of the case as is borne out from order dated 16-2-1981, wherein, the adjudicating officer has observed that the petitioner had at the time of hearing on 31-1-1981 taken objection to the weight sheet prepared by the Dy. Superintendent of the Directorate and he was directed to take weights of the products by making his own arrangements but the order was not complied with. By the said order 16-2-1981 the Deputy Superintendent of the Directorate was again ordered to take the weight of the products afresh but no action was taken in this regard in spite of the fact that the matter remained pending till the year 1985, when the new incumbent of the office passed the undated order which was despatched to the petitioner on 17-9-1985, solely relying on the disputed version of the department without looking for or having before him by evidence in support thereof. The Appellate Authority also realised the importance of determining the correctness of the alleged weights and after considering the record of the case he observed as under: "Crux of the case is the weight of the Water-Coolers of different sizes". He then noted the order dated 16-2-1981 and non-compliance thereof by the Senior Intelligence Officer and observed as under:--
"The Senior Intelligence Officer vide his Letter No. C. No. DDI/INT/CE/ 4(3)/80-81/472, dated 8-3-1981 refused to obey the order of the Deputy Collector contending that such an exercise will falsify his case."
He also noted that Mr. H.MA. Abbasi, who had signed the statement of weights as Factory Manager, was according to the petitioner an under-training Labour Officer in the Factory of the petitioner and was not aware of the technicalities. It was also found that the contentions of the petitioner were not examined. In conclusion the Appellate Authority remanded the case to the Dy. Collector for de novo consideration. The respondent No.3 by his judgment dated 30-9-1986 upheld the order of remand with the directions that an expert be associated alongwith the representative of the petitioner to ascertain the quantity of the raw material used in the production of the goods during the relevant period.
The matter was then taken up by the Deputy Collector of the Central Excise for adjudication. He addressed letter dated 16-6-1988, to the Dy. Director of the Directorate pointing out that they had failed to carry out the directions given by respondents Nos. 2 and 3 and that the Directorate also avoided the attendance of the case and directed them to take necessary action in compliance thereof but no action was taken. Weights of the products were not verified. Nontheless the same Adjudication Officer who had written letter dated 16-6-1988 found the petitioner guilty of the charges framed against it and passed the impugned order dated 17-8-1988 for recovery of Rs.10,01,250 as outstanding Sales-tax and also maintained the penalty as imposed in the earlier adjudication order for following reasons:--
"I have come to the conclusion that arguments of the manufacturer were fully appreciated by the earlier adjudication officer. In spite of number of dates of hearings the manufacturer failed to produce any valid piece of evidence on the basis of which their point of view could be accepted. On the other hand the manufacturer, themselves accepted the weight of various products on the basis of which the case was made. That statement was signed by the technical staff of the manufacturer. This piece of evidence is irrefutable."
It is evident that the Deputy Collector while passing the impugned order dated 17-8-1988, overlooked and brushed aside all the earlier orders passed by his predecessor and the specific directions given by the Appellate and Revisional Authorities and so also his own letter dated 16-6-1988. The Deputy Collector passed the said impugned order with no material or evidence before him, in addition to what was before his predecessor who passed undated order in 1985 which was set aside for want of evidence and verification of weights. Not only that but he virtually relied on the order of his predecessor by observing that all the arguments of the manufacturers were fully appreciated by the previous Adjudication Officer. He went a step further in shifting the onus of proof to the shoulders of the petitioner by observing that the petitioner had not produced any evidence although it was the Directorate who had to establish their case by verifying the weights of the products to determine the actual consumption of raw material in the goods produced to prove their case of use of alleged non-accounted manufacture of particular brand of Water-Cooler No.3, for evasion of the Sales Tax. The Deputy Collector while passing the impugned order had no such material before him which could prove the guilt of the petitioner. He has relied on the statement of the weights with observation that the petitioner had accepted the said statement. The said observation is diagonally opposed to all the facts on the record before the Adjudication Officer. It has been consistent defence of the petitioner before all the authorities that the person who had signed the statement had no such authority, was not a technical hand and that he was only an under-training Labour Officer, whose period of employment was hardly a month when his signatures were taken by the prosecuting Agency. In any event the said statement of weighment was discarded by the Adjudication Officer as early as 31-1-1981, when he gave the directions for taking weights of the products afresh and submission of such report before him on 11-3-1981. The Adjudication Officer while passing the impugned order has overlooked the observation of the Appellate Authority with regard to refusal on the part of the Senior Intelligence and Investigation Officer to carry out the weights on the ground that such an exercise would falsify his case. Such a stand goes a long way td prove falsehood of the charges levied against the petitioner. There is no evidence to substantiate that any quantity of raw material remained unaccounted for during the relevant period. There is nothing to establish manufacture of the most popular and costly brand of Water-Cooler No.3 from such raw material and stealthy removal thereof, on the basis of cost of which the allegedly evaded sales tax is worked out. Even the charge-sheet in this context is presumptions, rather imaginative in character.
In view of the above circumstances it is amply clear that the Adjudication Officer had before him no evidence at all to substantiate the charges to hold the petitioner guilty of evasion of alleged Sales Tax.
On the contrary the petitioner has placed material on record before us which establishes the fact that the officer who had signed the Chart i.e. statement of weights annexed to the charge-sheet, was not a technical hand and was employed as an under-training Labour Officer. Nothing has been placed on record by the prosecution to warrant the conclusion that the said person was holding any authority on behalf of the petitioner. The respondents have neither filed the counter-affidavit nor any other material to rebut the case of the petitioner.
It is well-settled that the jurisdiction under Article 199 of the Constitution is not-to be normally exercised to interfere in orders of tribunal or authority having jurisdiction in particular matter, but such jurisdiction is well-attracted in cases where any finding of fact is based on no evidence at all as in the instant case, or is given ignoring material evidence or on consideration or inadmissible evidence or in arbitrary exercise of jurisdiction or there be material illegality in the conduct of proceedings causing palpable injustice.
Reference may be made to P L D 1979 SC 39 (Nawaza v. Additional Settlement and Rehabilitation Commission Gujrat and others) wherein it was held that the High Court does not act as a Court of fact and ought not to enter into and decide disputed questions of fact, although it can interfere with a finding of fact given by a subordinate Court or a tribunal or other authority if the finding is based on no evidence or is based on a complete misreading of the evidence.
In 1972 SCMR 395 (The Commissioner and others v. Mian Sher Muhammad) their Lordships held as under:--
"It is correct that ordinarily, the High Court is not entitled to investigate disputed questions of fact in the exercise of its writ jurisdiction but it is well-settled that a finding of fact can be interfered with if it is based on no evidence, or a misreading of evidence, or ignoring of material evidence, or taking into consideration inadmissible evidence."
In the case of Rahim Shah v. Chief Election Commissioner of Pakistan reported in P L D 1973 SC 24, their Lordship eloquently stated the law to the effect that the cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc., are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the tribunal. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order, certiorari will be granted.
1981 S C M R 318 (Swati Qaum v. Painda Khel Qaum) is the authority on the proposition that any decision taken by a competent authority by ignoring or misreading evidence is liable to be quashed by the High Court in the exercise of its powers of judicial review.
It was next contended by the learned counsel for the petitioner that the respondents Nos. 1 and 2 had no jurisdiction to determine or recover Sales Tax and that the provisions of Central Excises and Salt Act, 1944 and Central Excise Rules could not be invoked for levy or recovery of Sales Tax.
In the para-wise comments filed by the Superintendent Directorate of Intelligence and Investigation (Custom and Excise), it was stated that the goods were excisable but have been exempted from the payment of Central Excise duty for the time being and on that basis it was asserted that Central Excise and Salt Act, 1944 and the Central Excise Rules, 1944 are applicable.
Show-cause notice was issued to the petitioner on 2-11-1980.
The Sales Tax Act, 1951 was amended by section 4 of Finance Ordinance, 1979 (XXX of 1979) whereby section 3 of former Act was amended substituting First and Second provisos to subsection (4) of section 3. The substituted provisos read as under:--
"Provided that, in the case of goods specified in the First Schedule to the Central Excises and Salt Act, 1944 (I of 1944), hereinafter referred to as the said Act:--
(a) in respect of goods which are not for the time being exempt from the payment of the duty of excise, the tax shall be payable at the same time and in the same manner as the duty of excise, and the provisions of the said Act and the rules made thereunder relating to payment of duty, worst levy of duty, ,accounting of production, storage and removal of goods, warehousing, licensing, recovery of arrears, rectification of mistakes, and offences and adjudication of confiscation and penalties relating thereto shall so far as may be and with the necessary modifications, apply to the payment of tax under this Act as they apply for the purposes of the said Act; and
(b) in respect of goods which are for the time being exempt from the payment of the duty of excise, the tax shall where the Board so direct be payable at the same time and in the same manner as the duty of excise would have been payable had the goods not been so exempt, and the provisions of the said Act and the rules made thereunder relating to the matters specified in clause (a) shall, so far as may be and with the necessary modifications, apply to the payment of tax under this Act, as they apply for the purposes of the said Act." and ................
The said amendment remained in force till Finance Ordinance of 1981 was promulgated on 1-7-1981.
Since it is admitted by the respondent that the goods were exempt from the payment of duty of excise it is not necessary to go into issue whether the goods manufactured by the petitioner were excisable or not, for the purpose of decision of the issue raised and keeping in view the above-amendment.
The goods being exempt from the duty of excise, the proviso (b) is attracted. The said proviso (b) provides that in respect of goods which are for the time being exempt from the payment of duty of excise, the tax (i.e. Sales Tax) shall where the Board has so directed be payable at the same time and in the same manner as duty of Excise, would have been payable, had the goods not been exempt and the provisions of the Central Excises and Salt Act and the Central Excise Rules relating to the matter specified in clause (a) shall, so far may be and with the necessary modification, apply to the payment of tax under the Sales Tax, Act as they apply for the purposes of the Central Excises and Salt Act. Neither the direction of the Central Board of Revenue has been placed before us as envisaged under proviso (b), nor it has been contended by the respondents that the said direction was issued by the Board.
In this view of the matter it is obvious that the Sales Tax was not recoverable by the Central Excise and Land Custom Authorities, and therefore the show-cause notice issued by them and subsequent proceedings initiated thereon were nullity in law and without jurisdiction.
Since the impugned order is based on no evidence and the proceedings suffered from grave and material irregularities inasmuch as several orders and directions for taking weights of products were repeatedly ignored, we hold that the same are without lawful authority and cannot be sustained, and we declare the same as illegal and without jurisdiction.
It was contended on behalf of the respondents that the matter may be remanded for fresh adjudication as directed earlier try the Appellate and Revisional Authority. We have given our anxious consideration to the said request but are of the opinion that since the Prosecuting Officer had himself stated in his parawise reply that taking weights would not reflect correct position, we find that no useful purpose will be served by remanding the case after nearly ten years and moreso for the reasons that the prosecuting Agency is of the opinion that such an exercise of taking fresh weight would falsify its case as has been observed by the Appellate Authority. Additionally for the reason that on, 20-9-1980 when the report was prepared and submitted by the Intelligence and Investigation (Custom and Central Excise), and on 2-11-1980 when the show-cause notice was issued Collectorate of Central, Excise and Land Customs had no jurisdiction to take any step for recovery of the Sales Tax.
The above are the reasons for the short order passed by us on 12-11-1990, whereby the petition was allowed.
A.A./U-102/K Petition accepted.