ADDITIONAL COLLECTOR-II, (ADJUDICATION), CUSTOMS HOUSE, LAHORE VS AHSAN & COMPANY
2002 P T D 1839
[Lahore High Court]
Before Naseem Sikandar and Muhammad Sair Ali, JJ.
ADDITIONAL COLLECTOR-II, (ADJUDICATION), CUSTOMS HOUSE, LAHORE
versus
Messrs AHSAN & COMPANY
C. A. No. 154 of 2001, decided on 04/01/2002.
Sales Tax Act (VII of 1990)---
-----Ss.2(1) & 47---Customs .Act (IV -of 1969), S.194B---Additional evidence before Appellate Tribunal--- Permissibility---Jurisdiction-- Failure to raise question of law in -appeal before High Court---Effect-- Adjudicating Officer initiated proceedings to re-determine the value of, supplies made by the importer on the basis of information from Audit Wing---Adjudicating Officer found the importer to have suppressed the value of goods imported---Appellate Tribunal relying on the additional evidence produced by the importer allowed the appeal and set aside the proceedings initiated by the Adjudicating Officer---Contention of the Authorities was that the Tribunal was not justified in admitting evidence at appeal stage without prior notice to the department--- Validity---Where department was duly represented by the Departmental representative at the Appellate Tribunal as defined in S.2(.1) of the Sales Tax Act, 1990, read with S.194B of the Customs Act, 1969, was competent to take additional evidence- --tribunal on appraisal of certain documents reached at the conclusion that the goods supplied included overhead incidences and out of such evidence no question of law had arisen---Validity---Only a question of law arising out of an order of the Tribunal could be a subject-matter of appeal before High Court under S.47 of the Sales Tax Act, 1990---High Court declined to entertain the grievance of the department---Appeal was dismissed in limine.
Khan Muhammad Virk for Appellant.
Muhammad Ashraf Ali for Respondent.
ORDER
NASEEM SIKANDAR, J. ---This further appeal under section 47 of the Sales Tax Act, 1990 assails a judgment of the Customs Excise and Sales Tax Appellate Tribunal, dated 15-1-2001. Through that order a Division Bench of the Tribunal accepted the appeal filed against the order of Collector (Adjudication) Lahore holding the adjudication to be a "fake exercise". '
2. The respondent is an importer of floated glass. On receipt of an information from the Audit Wing of the Department the Adjudicating Officer confronted the assessee with following objections:---
"(i) That the learned Tribunal passed the impugned judgment on the basis of presumption that the evidence produced by the respondent before the Tribunal must have been adduced by him before the Adjudicating Officer which is not tenable under the law.
(ii) That the learned Tribunal fell in error in admitting the documents into evidence when the same was neither produced before the detecting agency or the Adjudicating Authority. The learned Tribunal also failed to appreciate that he has no jurisdiction to receive the evidence at appellate stage under the law and the only course open to him was to remand the case to the Additional Collector (Adjudication) for fresh decision. The learned Tribunal also failed to appreciate that in addition to the, addition of sundry expenses in the price of supply there was other considerations also which were to be taken into account for the purposes of determination of value of the supply as provided by section 2(46) of the Sales Tax Act, 1990."
3. In the course of proceedings they followed the Objection No. l was dropped while the importer was held to have suppressed the value of the goods imported. According to the Adjudicating Officer while importing goods during January, 1998 to April, 1999 the importer, respondent did not include the incidence of overheads while computing the sales tax payable thereon. Accordingly a demand of Rs.8,04,740 was raised against the importer who was also found liable to pay penalty 'of Rs.40,237 under section 33(2)(cc) of the Sales Tax Act, 1990.
4. On appeal a Division Bench of the learned Tribunal on going through the copies of the sales tax return and the computation of sale price of the imported goods reached the conclusion that these duly included sundry expenses as well as profits. Therefore, according to the learned Tribunal there was absolutely no jurisdiction for the Adjudicating Officer to have initiated the exercise.
5. For the Revenue it is complained that the learned Tribunal was not justified- in admitting evidence at appeal stage without prior notice to the department. According to the learned counsel for the Revenue if the Tribunal had given notice of the documents relied upon and produced by the assessee/present respondent before them, the department could have adequately defended the order of adjudication. Therefore, he prays for a remand of the matter to the learned Tribunal.
6. Learned counsel for the respondent/assessee, however, relied upon re: Messrs Philips Electrical Industries v. Pakistan etc. (2000 YLR 2724) to state that the Tribunal being competent to receive evidence, no illegality had crept in its order. Also states that in the given situation no question of law has arisen out of the order of the Tribunal and, therefore, this appeal is not maintainable on that score alone.
7. We will agree. The Appellate Tribunal as defined in sub section (1) of section 2 of the Sales Tax Act read with section 194B of the Customs Act, 1969 being competent to take additional evidence, the grievance of the department cannot be entertained. All the more so when the department was duly represented by the Departmental representative before the Tribunal. Also it appears that no request whatsoever was ever made by the D.R. to the Tribunal to seek further instructions. While representing the department the learned D.R. is supposed to have all the record of the adjudication proceedings including the evidence collected by the department at that stage. Therefore,' the department cannot be heard in complaint that it was not confronted with the documents considered by the learned Tribunal.
8. We are also in agreement with the learned counsel for the appellant that no question of law in the given situation can be said to have arisen out of the order of the Tribunal. The Tribunal on appraisal of certain documents reached the conclusion that the goods supplied included overhead incidences. Out of that evidence no question of law can be said to have arisen. It hardly needs to emphasis that under section 47 of the Sales Tax Act, 1990 only a question of law arising out of an order of the Tribunal can be a subject-matter of appeal before this Court. No question of law having arisen out of the impugned order of the Tribunal, this appeal shall be dismissed in limine.
Q.M.H./M.A.K)A-456/L Appeal dismissed.