COLLECTORATE OF CUSTOMS, SALES TAX AND CENTRAL EXCISE, QUETTA VS DAWOOD YAMAHA (PVT.) LTD., BALOCHISTAN, 2003 PTD-QUETTA-HIGH-COURT-BALOCHISTAN 1429 (2002)

Sales Tax Act (VII of 1990)----

----Ss. 47 & 46---Limitation Act (IX of 1908), S. 5---Appeal to High Court --Limitation---Computation---Condonation of delay---Provision of S.5, Limitation Act, 1908 is not applicable to the appeal under S.47, Sales Tax Act, 1990 which being a special enactment provides its own period of limitation for filing of appeal under S.47(2) of the Sales Tax Act, 1990 whereby an appeal arising out of an order under S.46 of Sales Tax Act, 1990 lies to the High "'our, only on question of law for which a period of sixty days from the date, on which anaggrieved person or the Department is served with the notice of air order under S.46 is to be filed--Appeal to the High Court, by virtue of S.47, is to be filed within the specified period as provided in tire Sales Tax Act, 1990 and the provision of S.5, Limitation Act, 1908 having not been made applicable to the appeals under S.47 of the Sales Tax Act, 1990 could not be pressed into service for condonation of delay---Powers of High Court to condone the delay--Scope ---Principles.

Writ Petition No, 9272 of 1998; Messrs Attock Cement Pakistan Limited's case Civil Appeal No. 929 of 19959 Collector of Central Excise and Sales Tax v. Rupali Polyester Ltd., and others 2002 SCMR 738; Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 and Abdul Qayyum Khan v. Mian Said and 4 others PLD 1975 Lah. 707 distinguished.

K. N. Kohli, D.A.-G. for Appellants (in all Appeals).

Syed Mehmood Ali Askari for Respondent (in all Appeals).

Date of hearing: 7th October, 2002.

JUDGMENT

RAJA FAYYAZ -AHMED, C.J.---These Sales Tax Appeals Nos.5 of 2001, 6 of 2001, 7 of 2001, 8 of 2001 and 9 of 2001 have been directed against a common order, dated 27-10-2000 passed by the Customs, Excise and Sales Tax Appellate Tribunal, Karachi Bench, Karachi whereby the appeals filed by tile respondent No.1 in each of these appeals alongwith the other connected appeals, filed against the order of the Additional Collector, Sales Tax, Hub Balochistan have been accepted and the orders impugned in such appeals have been set aside.

2. The brief facts of the case are that the respondent No. 1 in the appeals being industrial concerns and registered as such with the Collectorate of Customs, Sales Tax and Central Excise each separately adjusted Input tax statedly being admissible to them under S.R.C. No.1307(I)/97, dated 20-12-1997 for the periods and amounts, mentioned in the show-cause notice, dated 25-10-1999 issued by the Assistant Collector, Sales Tax, Hub to the respondent No.1 in Sales Tax Appeals No.5 of 2001, 6 of 2001 and 9 2001 and show-cause notice, dated 18 9-1999 and 11-10-1999 tent to the respondent No.1 in Sales Tax Appeals No.7 of 7001 and 8 of 2001. Lit& on each of these respondents deposited adjusted the amount of input tax in the Government Treasury under S.R.O. No.46(I)/96; dated 9-4-1999 and thereafter, they filed separate refund claims for the amount deposited by them each under section 66 of the Sales Tax Act, 1990 and enclosed therewith the Judgment of the Honourable Lahore High Court passed in Writ Petition No.9272 of 1998 in support of their claims. The Assistant Collector, Sales Tax flub after having considered their refund claims found the same to be not admissible to them under S.R.O. No. 1303/(I)/99, dated 20-12-1997, therefore, the respondent No.1 in these appeals vide separate notices mentioned above were called upon to show-cause as to why their claims may not he rejected in view of the above-said notification read with judgment of the Hon'ble Supreme Court of Pakistan passed in the case of Messrs Attock Cement, Pakistan Limited (Civil Appeal No.929 of 1995). The Assistant Collector Sales Tax, Hub as specified in the show-cause notices fixed the cases for hearing on 27-10-1999. The respondent No.1 in these appeals filed their respective replies to show-cause notices and eventually these maters were heard on 2-12-1999. After hearing the parties vide order, dated 15-3-2.000 the Assistant Collector, Sales Tax, Quetta at Hub rejected the refund claims. The respondent No.1 in these appeals challenged the adjudication order passed on original side by the Assistant Collector by filing separate appeals before the Collector of Appeals-II Customs, Sales Tax and Central Excise, Western Zone, Karachi. After hearing the parties, through a common Order No.100 of 2000, dated 29-4-2000 these appeals were rejected. Thereafter, the respondent No.1 in each of these appeals challenged the abovesaid order passed by .the Assistant Collector, Sales Tax and the Collector of Appeals by filing separate appeals before the Customs, Excise and Sales Tax Appellate Tribunal, Karachi Bench, Karachi. The learned Appellate Bench after hearing the parties vide common order, dated 27-10-2000 impugned herein accepted their appeals alongwith the other connected identical appeals and set aside the orders impugned therein and this order has been assailed in the instant appeals filed under section 47 of the Sales Tax Act, 1990.

3. Also, a Civil Miscellaneous Application No. 1818 of 2001 has been tiled by the appellant under section 5 of the Limitation Act seeking for condonation of the delay in filing the appeal on the ground that copy of the impugned order was not, supplied by the Customs Appellate Tribunal which statedly has come to the notice of the Customs Authorities as the respondent No. 1 claimed for refund of the amount involved in the case, thus the delay in filing the appeal, claimed to be neither intentional nor deliberate. The respondent No.1 in each of these appeals have filed their respective consolidated replies to the memo of appeal and Miscellaneous Applications supported by affidavits controverting the affidavit filed in support of the application for condonation of delay. It has been contended in the consolidated reply that the delay in filing the appeal is not condonable for -the reason that copy of the impugned order passed by the Appellate Tribunal in each case was transmitted to the Additional. Collector, Sales Tax, Quetta at Hub on the same date i.e. the date on which the impugned appellate order was passed as well as copy of the same was also delivered in the office of the Deputy Collector (Refund); Sales Tax Collectorate, Quetta on 15-1-2001 receipt whereof has been acknowledged on the copy of the letter, dated 11-1-2001 (Annexure C) by means of which refund was claimed by the respondent No. 1 pursuant to the order passed by the Sales Tax Appellate Tribunal, Karachi Bench Karachi. Further it has been contended in the reply that section 5 of the Limitation Act has not been made applicable to an appeal filed under section 47 of the Sales Tax Act, 1990, hence; the application for condonation of delay under section 5 of the Limitation Act is not maintainable.

4. The learned counsel for the respondent emphatically contended that since the appeal is hopelessly barred by time, therefore, it would be appropriate to hear the parties on the point of limitation instead of hearing the matter as a whole, because the delay in filing the appeal by no stretch can be condoned. The learned DAG did not express any reservation to the request and he agreed that the arguments on the point of limitation may be heard first.

5. The learned DAG contended that the delay, if any; in filing the appeal is condonable for the reason that the impugned order was not served upon the appellants within the meaning of subsection (2) of section 47 of the Sales. Tax Act, 1990 and no sooner the appellant came to know about the impugned order on filing of the claim for refund of the amount, appeal was filed within the prescribed period of limitation as provided under subsection (2) of section 47 of the Act; therefore, the same is not hit by limitation and the prescribed period of limitation for filing appeal will thus; run from the date of acquiring knowledge about the impugned order. The learned DAG further argued that since the copy of the impugned order was not sent to the appellant by the Appellate Tribunal, therefore, the delay occurred in completing the process for filing of appeal, if any; obviously will be liable to be condoned. He placed reliance on the reported judgments of the Honourable Supreme Court 2002 SCMR 738 (Collector of Central Excise and Sales Tax v. Rupali Polyester Ltd. and others) and; 1987 SCMR 1119 (Pakistan Post Office v. Settlement Commissioner and others).

6. Syed Mehmood Ali Askari, the learned counsel for the respondent No.1 contended that delay in filing the appeal is not condonable under section 5 of the Limitation Act, as the same has not been made applicable to section 47 of the Sales Tax Act, 1990, and secondly; in the Miscellaneous Application the date on which the impugned order was received by the appellant nor the date of acquiring knowledge with regard to the impugned order has been mentioned. Further the learned counsel contended that by means of written request (Annexure-C), dated 11-1-2001 claim for refund of the amount involved in the case was made to the Deputy Collector (Refund) Sales Tax, Collectorate, Quetta at Hub in the light of the order, dated 27-10-2000 passed by the Appellate Tribunal and copy of the same was enclosed with the above-quoted letter and receipt of these documents under official stamp was acknowledged on 15-01-2001, hence; at least on this date the Customs Authorities had acquired knowledge of the impugned appellate order on receipt of copy of the same in their office, therefore, the time for filing of appeal will start running at least with effect from 15-1-2001, moreover; in response to the application submitted to the Tribunal on 7-1-2001 on behalf of the respondent No.1 vide letter, dated 20-11-2001 with reference to the aforesaid letter (Annexure-B) it was certified by the Assistant Registrar of the Tribunal that copy of the Appellate order passed by the Appellate Tribunal .in Appeals No.100 of 2000 to 104 of 2000 were dispatched to the Collector, Sales Tax, Balochistan at Hub on 4-1-2001 under registered cover A.D and the A.D cards received back bears the Post Office stamp showing the delivery of the article to the addressee as having been made on 9-1-2001, thus; in view of these documents i.e. Annexures B and D, it has been contended that copy of the impugned and appellate order was received officially by the appellant on 9-1-2001. Also, copy of the letter, dated 7-4-2001 addressed to the Deputy Collector, Sales Tax, Hub by the Assistant Collector, Sales Tax (copy endorsed to the respondent No.1) has been filed alongwith the copy of the points formulated by the office of the Assistant Collector (S-Tax) for consideration. The letter, dated 7-4-2001 Vas addressed to the Deputy Collector, Sales Tax with reference to his letter, dated 12-3-2001 on the subject wherein it was requested by the Assistant Collector, Sales Tax that comments to the light of formulated points may at the earliest be made enabling the said office to proceed further in the matter. In view of these undisputed documents, Mr. Askari strenuously, argued that the delay in filing the appeal being hopelessly barred by time cannot be condoned nor any sufficient cause has been shown, which prevented the appellant to file the appeal within the prescribed period of limitation, hence; the same is liable to dismissal. He placed reliance on a reported judgment i.e. PLD 1975 (Lah.) 707 (Abdul Qayyum Khan v. Mian Said and four others).

7. The contentions put forth on behalf of the parties have been considered in the light of the documents filed with the memo. of appeal and the consolidated reply filed on behalf of the respondent and the provisions of section 47 of the Sales Tax, 1990. Also, the case-law cited by the learned DAG and Mr. Askari has been carefully perused and considered. The order of the Appellate Tribunal, impugned herein was passed by the respondent No.2 on 27-10-2000 and the instant appeal was presented to the Registrar of the Court on 13-10-2001, obviously after a considerable delay after expiry of the prescribed period of limitation for filing of appeal i.e. sixty days. Alongwith the memo. of appeal Civil Miscellaneous Application has been filed seeking for condonation of the delay, which has been contested by the respondent No.1 by means of a consolidated reply wherein the grounds on which the delay has been sought for have been contested and controverted by means of the counter-affidavit and competency of the Miscellaneous Application, filed under section 5 of the Limitation Act, has also been questioned. Undisputedly section 5 of the Limitation Act, 1908 has not been made applicable to appeals under section 47 of the Sales Tax Act, 1990 and the latter Act being a special enactment provides its own period of limitation for filing of appeal under subsection (2) of section 47 of the Sates Tax Act, whereby an appeal arising out of an order under section 46 lies to the High Court only on a question of law for which a period of sixty days from the date, on which an aggrieved person or the Collector is served with the notice of an order under section 46, is to be filed, hence; by virtue of provisions of section 47 of the Sales Tax Act appeal is to be filed within the specified period as provided in special enactment i.e. Sales Tax Act, 1990 and the provisions of section 5 of the Limitation Act having not been made applicable to the appeals under section 47 of the A Act, cannot be pressed into service for condonation of the delay in filing the appeal, therefore, the application under section 5 of the Limitation Act has been incompetently filed, however; the High Court in appropriate case is

competent to condone the delay provided the delay of each day is satisfactorily accounted for and the Court is satisfied that the appellant was prevented by a sufficient cause to file appeal within the prescribed period of limitation. In computing the period for filing of appeal under subsection (2) of section 47 of the Sales Tax Act, the date of service of the order passed by the Appellate Authority under section 46 of the said Act would be relevant and the prescribed period of limitation will start running against the appellant from the date of service of such notice. In a case where such notice has duly been served, but appeal was not filed within the prescribed statutory period, the burden shall heavily lie upon the appellant to satisfy and substantiate that he was prevented from filing the appeal within the prescribed period of limitation for any sufficient cause, which has to be explained through undisputable facts. In the instant case condonation of delay has been sought for in the Miscellaneous Application on the ground that copy of j the impugned order was not supplied by the Customs Appellate Tribunal and such fact stated to have come to the notice of the Customs Authorities when the respondent claimed for refund of the amount involved in the case, but no date with regard to the acquiring knowledge of the impugned order was been mentioned in the Miscellaneous Application. It is pertinent to note that alongwith the reply filed by the respondent No.1, copies of the documents i.e. Annexures A, B, C and D have been filed. The authenticity and genuineness of these documents have not been challenged or disputed even during arguments by the learned DAG, hence; reliance can safely be placed on these documents. Vide Annexure-C, dated 11-1-2001 addressed to the Deputy Collector (Refund), Sales Tax Collectorate, Quetta at Hub, claim for refund of the amount involved in the case was made in the light of the impugned order, dated 27-10-2000 passed by the learned Appellate Tribunal and the contents of the para-3 of the letter indicate that copy of the order was also enclosed therewith for ready reference and this document was received in the office of the Collectorate of Customs, Sales Tax and Central Excise of Hub on 15-1-2001. Vide application (Annexure-A), dated 7-11-2001 filed in Sales Tax Appeals No. 100 of 2000 to 104 of 2000 request was made that the appellants in such appeals be informed as to on what date and to whom the copy of the order was sent by the Appellate Tribunal including the mode of service of notice, because the, appellant through the Miscellaneous Application, filed in the High Court has sought for condonation of delay in filing the appeal on the ground that the Appellate Tribunal did not forward copy of the order to the appellant. In response to this application vide letter, dated 20-11-2001 addressed to the respondent No. 1 by the Assistant Registrar of the Appellate Tribunal, it has been confirmed and conveyed that copy of the order passed in these appeals was sent under registered cover A.D. to the Collector, Sales Tax Balochistan at Hub on 4-1-2001 and the same were delivered to the addressee on 9-1-2001 as per A.D cards received back by the Appellate Tribunal, whereas; as per letter, dated 7-4-2001 (Annexure-D) addressed to the Deputy Collector, Sales Tax, Hub comments were sought for by the Assistant Collector, Sales Tax in response to the letter, dated 12-3-2001 sent to him by the addressee enabling his office to proceed further in the matter in the light of the points formulated by the Assistant Collector, copy whereof has been appended with the Annexure-D, which has also not been disputed by the appellant, hence; it can be safely assumed that Annexure-D and the points formulated enclosed therewith pertained to the intended inter- department exercise for filing of appeal against the impugned order. From the undisputed document i.e. Annexure-D referred to above, it is evident that copy of the impugned appellate order was received in the office of the appellant on 9-01-2001 and subsequently vide Annexure-C, dated 11-1-2001 copy of the impugned appellate order was again received in the office of the appellant on 15-01-2001, hence; in such view of the matter; the time for filing of appeal under section 47 of the Sales Tax Act, 1990 shall start running against the appellant with effect from 9-1-2001 i.e. the-date on which the Collector was served with the notice of the impugned order within the meaning of subsection (2) of section 47 of the Sales Tax Act, 1990 and the appeal filed on 13-10-2001 after a considerable delay after the expiry of the period of sixty days from the date of service of notice impugned order, which the appellant miserably failed to account for, hence; inordinate delay in filing the appeal after the period of sixty days, available to him with effect from 9-01-2001 is not condonable in routine, inasmuch as even no ground has been urged in the Miscellaneous Application that for any sufficient cause the appellant was prevented to file appeal within the prescribed statutory period of limitation. The case-law cited by the learned DAG on the point of limitation involved in the case are neither relevant to his contentions nor render any help in improving the case of the appellant, hence; for the foregoing reasons this appeal being hopelessly barred by time, is dismissed, leaving the parties to bear their own costs.

H.B.T./164/Quetta Appeal dismissed.