Messrs INDUSTRIAL ENTERPRISES VS ADDITIONAL COLLECTOR
2002 P T D 2785
[Lahore High (Court]
Before Naseem Sikandar and Mansoor Ahmad, JJ
Messrs INDUSTRIAL ENTERPRISES
Versus
ADDITIONAL COLLECTOR and others.
Appeal No. 158/S of 1999, decided on /01/.
th
June, 2001. Sales Tax Act (VII of 1990)---
----Ss.3, 6, 22, 23, 26, 33, 34 & 47---Order for payment of- sales tax along-with additional tax and imposition of penalty---Appeal---During scrutiny of record of appellant for tax period of relevant two months, it was detected that appellant cleared ,the quantity of goods without payment of sales tax---Appellant was charged with contravention of relevant provisions of law and Adjudicating Officer ordered the payment of sales tax along-with additional tax and also imposed penalty on appellant and said order was upheld by both the Appellate forums----
Appellant had pleaded that omission on his part was due to inadvertence pertaining to period of said two, months and was not intentional evasion and of tax that due to omission on part of newly appointed clerks, taxes for said two months could not be paid---Two separate orders were passed in the case by two different Additional Collectors---Relevant period of default in both cases was the same---Customs Excise, and Sales Tax Appellate Tribunal in one appeal reduced the penalty, but in the other appeal no remission from penalty was given--.-Validity------Same Tribunal could not apply a different yardstick in disposing of appeals-- Applying principle of consistency, penalty in other case was also reduced.
Altaf-ur-Rehman Khan for Appellant.
A. Karim Malik for Respondents.
ORDER
NASEEM SIKANDER, J.---Present appeal is filed under section 47 of the Sales Tax Act, 1990. It is directed against the order dated 15-9-1999 passed by the Customs, Excise and Sales Tax Appellate Tribunal, Lahore Bench, Customs House, Lahore. The legal questions raised by the appellant are:
(i)Whether the learned Tribunal was bound to be consistent and follow its judgment given in the same case against the same appellant in the matter .of Central Excise Duty wherein the learned Tribunal had reduced the amount, of penalty from Rs.1,16,766 to Rs.20,000 and refused to reduce the penalty in the matter of Sales Tax?.
(ii)Whether a different view with regard of penalties for two different taxes (Central Excise Duty and, Sales Tax) can be taken against the same appellant in the same set of facts and circumstances arising out of the same alleged violation?
(iii)Whether the learned Tribunal had justly exercised its jurisdiction in maintaining the penalty in the case of Sales Tax when the same learned Tribunal had reduced the penalty in the case of Central Excise Duty by declaring it to be harsh?
(iv)Whether the allegation of tax fraud be sustained in the case of Sales Tax when the omission had been treated to be inadvertent and unintentional?
2. Relevant facts of the case are that during the security of the appellant's record for tax period 7/97 and 8/97 it was detected that the appellant cleared a quantity of 843544 Nos. of different varieties of Thermospore plastic products worth Rs.12,26,051 without payment of sales tax amounting to Rs.1,53,256. The appellant was, therefore, charged with contravention of sections 3, 6, 22, 23 and 26 of the Sales Tax Act, 1990. The Adjudicating Officer ordered the payment of Sales Tax amounting to Rs.1,53,256 along-with additional tax payable under section 34. Penalty of Rs.76,628 under section 33(4)(f) of the Sales Tax was also imposed on the appellant. Both the appellate forum upheld the order of Adjudicating Officer.
3. It is pleaded by the appellant that there was an unintentional omission due to inadvertence pertaining to the month of July and August, 1997 and there was no intentional evasion of tax by the appellant. It was further argued by the appellant that due to omission on the part of the newly appointed clerks the Central Excise Duty and Sales Tax for two months could not be paid. It followed by to separate orders in original one passed by Additional Collector-I of Central Excise Customs House, Lahore whereby Central Excise Duty amounting to Rs.58,383 was B ordered to be paid and a .penalty of Rs.1,16,766 was imposed .under rule 210 of Central Excise Rules, 1944. The second order was passed by Additional Collector-II Sales Tax Lahore, Customs House, Lahore. By virtue of this order an amount of Rs.1,53,256 along-with additional tax was ordered to be paid and a penalty of Rs.76,628 was imposed under section 33(4) of the Sales Tax Act, 1990. Admittedly both the orders in separate appeals were filed. The plea and circumstances in both the cases was the same. The relevant period of default in both cases was the same. The Customs Excise and Sales Tax Appellate Tribunal in. Central Excise Appeal No. 520/LB of 1999 reduced the penalty of Rs.58,383 to Rs.20,000 whereas in sales tax Appeal No. 267/LB of 1999 no remission B from penalty was given. The learned counsel submitted that the same Tribunal could not apply a different yardstick in disposing of the appeal.
After hearing the parties and perusing the record, we are inclined to accept the appeal. Applying the principle of consistency, we are inclined to reduce the penalty of Rs.76,628 to Rs.20,d00 in sale tax case as it was remitted by the Tribunal in Central Excise case. The order of Tribunal is, therefore, stand modified to this extent..
Copy of the decision is sent to the Tribunal to pass an order in conformity with order of this Court.
H.B.T./I-136/L
Order accordingly.