COLLECTORATE OF CUSTOMS, SALES TAX AND CENTRAL EXCISE, QUETTA VS Messrs SANA INDUSTRIES LIMITED
2003 P T D 2657
[Quetta High Court]
Before Raja Fayyaz Ahmad, C. J. and Akhtar Zaman Malghani, J
COLLECTORATE OF CUSTOMS, SALES TAX AND CENTRAL EXCISE, QUETTA
Versus
Messrs SANA INDUSTRIES LIMITED and others
Sales Tax Appeal No.4.of 2001, decided on 29/10/2002.
(a) Sales Tax Act (VII of 1990)‑‑‑
‑‑‑‑S. 47(2)‑‑‑Limitation Act (IX of 1908), Ss. 5 & 29‑‑‑Appeal to High. Court‑‑‑Limitation, starting point of‑-‑Condonation of delay‑‑‑Provisions of S. 5 of Limitation Act, 1908 not made applicable to S. 47 of Sales Tax Act, 1990‑‑‑Powers of High Court to condone delay in appropriate cases‑‑Principles.
Section 5 of Limitation Act, 1908 has not been made applicable in respect of an appeal filed under section 47 of Sales Tax Act, whereby an appeal arising out of an order under section 46 lies to High Court in respect of any question of law for which a period of sixty (60) days from the date, on which an aggrieved person or Collector is served with notice of an order under section 46, is to be filed, hence, by virtue of provisions of section 29 of Limitation Act, section 5 of said Act cannot be pressed into service for condonation of delay in filing appeal, which has not been made applicable to section 47 of Sales Tax Act. Thus, application under section 5 of Limitation Act, .if filed, would be incompetent. In appropriate case, High Court is competent to condone delay, provided it is substantiated that for any sufficient cause, the appellant was prevented to file appeal within prescribed period of limitation i.e. sixty (60) days and delay of each day is to be satisfactorily explained. In computing period for filing of appeal under section 47(2) of Sales Tax Act, the date of service of the order passed by Appellate Authority under section 46 of said Act would be relevant and prescribed period of limitation will start running against appellant from the date of service of notice. In a case, where notice has been duly served, but appeal was not filed within prescribed statutory period, the burden shall heavily lie upon appellant to prove that he was precluded from filing appeal within prescribed period of limitation for any sufficient cause, which has to be explained and substantiated by undisputable facts.
(b) Sales Tax Act (VII of 1990)‑‑‑
‑‑‑‑S. 47(2)‑‑‑Appeal to High Court ‑‑‑Limitation‑‑‑Condonation of delay‑‑‑Impugned order, was passed on 30‑9‑2000‑‑‑Appeal was filed on 25‑9‑2001‑‑‑Appellant's plea was that copy of impugned order was not supplied by the Tribunal; and that he came to know when the respondent applied for refund of the amount‑‑‑Validity‑‑?Document filed by respondent bearing official stamp and date indicated receipt of impugned order by office of appellant on 2‑11‑2000‑‑‑Respondent's letter, dated 2‑11‑2000 claiming refund of amount enclosing therewith impugned order was received by office of appellant on 4‑12‑2000‑‑‑Appellant had not controverted or disputed receipt of such documents‑‑‑Comments of authority, dated 4‑10‑2001 submitted in office of Ombudsman contained reference to impugned order‑‑‑Appellant had not mentioned the date on which he acquired knowledge or notice of impugned order‑‑‑Copy of impugned order had been delivered twice in office of appellant on 2‑11‑2000 and 4‑12‑2000‑‑‑Duty of appellant was to explain delay of each day that for any sufficient cause he was prevented to file appeal within sixty days from date of receipt of impugned .order, which he had miserably failed to account for‑‑‑High Court dismissed appeal being hopelessly barred by time.
Collector of Central Excise and Sales Tax v. Rupali Polyester Ltd. 2002 SCMR 738 and Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 distinguished.
K.N. Kohli, D.A.‑G,. for Appellant.
H. Shakil Ahmed for Respondents.
Date of hearing: 7th October, 2002.
JUDGMENT
RAJA FAYYAZ AHMAD, C.J.‑‑‑This appeal under section 47 of the Sales Tax Act, 1990 has been directed against order, dated 30‑9‑2000 passed by the Customs, Excise and Sales Tax Appellate Tribunal, Karachi Bench in Sales Tax Appeal No. Q‑42 of 2000 whereby the appeal filed by the respondent No.1 against the orders passed by the Additional Collector, Sales Tax, Hub and Collector Appeals‑II, has been accepted and the orders impugned therein have been set aside.
2. The precise facts of the case are that during the course of audit of Messrs .Sana Industries Limited, Hub (respondent No.1) it was observed by the concerned auditor that during July, 1996 to March, 1997 the respondent No. 1 had claimed an amount of Rs.20,30,071 on account of purchase of power generator and its oil, accordingly; in the light of audit observations the Revenue Receipt Audit, Karachi vide office Memorandum No. 1(13)ST/Audit‑Obser/Hub/98/87, dated 11‑11‑1999 sent to‑the respondent No.1 pointed out that the above mentioned amount was not admissible for adjustment in view of the S.R.O. No.1053(I)/93, dated 30‑10‑1993 as amended vide S.R.O. No. 548(1)/94, dated 9‑6‑1994 providing that the goods acquired otherwise than its stock in trade or consumable store and loose tools, to be the goods in respect of which Input Tax shall not be claimed and thus, the respondent No. 1 were found to have wrongfully claimed Input tax on the goods in contravention of the aforesaid notification and thereby caused loss of Rs.20,30,071 by way of sales tax alongwith the additional tax to be calculated at the time of final payment. In view of the audit observations demand? cum‑show‑cause notice, dated 11‑1‑1999 was issued to the respondent No.1 by the Additional Collector Sales Tax, Huts, copy enclosed with the memo. of Constitutional petition whereby they were called upon to show‑cause within ten days of receipt of the notice as to why sales tax amounting to Rs.20,30,071 may not be recovered from them alongwith the additional tax of Rs.38,31,‑185 (calculated vide RRA) under section 34 of the Sales Tax Act, 1990 and they were further required to show‑cause as to why penal action for violation of the provisions of section 8(1)(b) of the Act be not taken against them under section 33 ibid read with S.R.O. No. 1053(I)/93, dated 30‑10‑1993 and the matter was fixed for hearing on the date specified in the notice. The respondent No.1 filed reply to the show‑cause notice and contested the ground of liability to tax and the additional tax including the penal action on the grounds mentioned therein. After hearing the respondents, the Additional Collector. Sales Tax, Hub vide Sales Tax Order‑in‑Original No. 19 of 1999, dated 7‑10‑1999 ordered that the respondent No.1 i/e. Messrs Sana Industries Limited are liable to pay an amount of Rs. 20,30,071 by way of sales tax alongwith the additional tax and also penalty of 5% of tax involved in subsection (2)(cc) of section 33 of the Sales Tax Act, 1990 was imposed for violation of the provisions of subsection (1) of section 8 of the Act, but as the respondent No.1 paid the principal amount of sales tax vide treasury challan, dated 29‑5‑1999 availing the amnesty from the payment of Additional Tax under section 34 and the penalties under section 33 of the Act vide S.R.O. No. 461(I)/99, dated 9‑4‑1999 read with S.R.O. No.520(I)/99, dated 30‑4‑1999, therefore, no further recovery proceedings were directed to be made.
3. The respondent No.1 feeling dissatisfied with the above mentioned order passed by the Additional Collector, Sales Tax Hub challenged the same in Appeal No. 39 of ,2000 before the Collector of Customs, Central Excise and Sales Tax, Appeals‑II, Western Zone, Karachi. The learned Appellate Authority after hearing the parties vide order, dated 31‑1‑2000 rejected the appeal of the respondent
4. The respondent No.1 feeling aggrieved of the above said orders assailed the same by filing Sales Tax Appeal No. Q‑42 of 2000 before the Customs, Sales Tax and Central Excise Appellate Tribunal (Karachi Bench), Karachi. The learned Appellate Bench vide order, dated 30‑9‑2000 accepted the appeal of the respondent No. 1 and set aside, the impugned orders, which has been assailed in the instant appeal by the Additional Collector, Sales Tax Hub, Balochistan.
5. Also alongwith the memo. of Appeal Civil Miscellaneous Application No. 1707 of 2001 has been filed under section 5 of the Limitation Act seeking for condonation of the delay in filing the appeal on the ground that the same occurred due to the fact that the copy of the impugned order has not been supplied by the Customs Appellate Tribunal, which came to the notice of the Customs Authorities when the respondent No. 1 claimed for the refund of the amount involved and the delay occurred in filing the appeal was neither intentional nor deliberate. Notice of this application was given to the other side and the respondent No.1 vide reply, dated 27‑11‑2000 filed in the office of the Court on 7‑12‑2000 contested the application for condonation of delay on various grounds of law and facts.
6. As the learned counsel for respondent strenuously 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, to which the learned DAG did not take any exception, accordingly; that learned DAG agreed that arguments on .the point of limitation may be heard first. Mr. K.N. Kohli, the learned Deputy Attorney General contended that the delay, if any, in filing the appeal is condonable for the reason that the impugned order‑‑was not served upon appellant within the meaning of subsection (2) of section 47 of Sales Tax Act, 1990 and no sooner the appellant came to know about the impugned order consequent upon filing of the claim for refund of the amount, this appeal was filed within the prescribed period of limitation as provided in subsection (2) of section 47 of the Sales Tax Act, 1990, therefore., the same is not hit by limitation and the prescribed period of limitation for filing appeal will not run from the date of the impugned order. Further the learned DAG 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 would be liable to be condoned. He placed reliance on the reported judgments of the honourable Supreme Court i.e. 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).
7. Mr. H. Shakil Ahmed, the learned counsel for the respondent No. 1 contended that the 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 filed under section 5 of the Limitation Act for condonation of the delay it has not been explained as to on which date the impugned order was received by the appellant, which in fact was sent to the appellant as well as the Additional Collector Sales Tax, Quetta on 30‑9‑2000 i.e. the date on which the impugned order was passed and as pursuant to the order assailed to appeal refund was not being made to the respondent No.1, therefore, he approached to the Federal Tax Ombudsman by filing a complaint and comments were filed by the department on 4‑10‑2001, hence, apparently it was admitted that copy of the impugned order was received by the appellant, who was also aware of the order passed by the respondent No.2, but despite active knowledge and notice, appeal was not filed within the prescribed period of limitation and no sufficient cause has been shown for condonation of a considerable delay in filing the appeal, hence, the same being hopelessly barred by time is liable to be dismissed.
8. The contentions put forth on behalf of the parties have been? considered in the light of provisions of subsection (2) of section 47 of the Sales Tax Act, 1990 and the documents filed with the memo. Of appeal as well those filed with the rejoinder to application filed under section 5 of the Limitation Act by the respondent No. 1. Also, the case? law cited by the learned D.A.‑G. has been carefully perused and considered. The order impugned herein was passed by the respondent No.2 on 30‑9‑2000 and the instant appeal was presented to the Registrar of this Court by the learned D.A.‑G. on behalf of the appellant on 25‑9‑2001 and alongwith the memo. of appeal Civil Miscellaneous Application No. 1707 of 2001 was filed seeking for condonation of delay. This application has been contested by the respondent No. 1 by means of rejoinder filed in the office of the Court on 7‑12‑2001 wherein the grounds do which the condonation of delay in filing the appeal has been sought for, have been controverted by means of counter‑affidavit and a preliminary objection, as also argued by Mr. H. Shakil Ahmed, has been taken that since section 5 of the Limitation Act has not been made applicable to section 47 of the Sales Tax Act, therefore, application is liable to rejection. It is worthwhile to note that section 5 of the Limitation Act, 1908 has not been made applicable in respect of an appeal filed 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 Sales Tax Act, whereby an appeal arising out of an order under section 46 lies to the High Court in respect of any question of law for which a period of sixty (60) days from the date, on which an aggrieve 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 29 of the Limitation Act; section 5 of the said Act cannot be pressed into service for condonation of delay in filing the appeal, which even has not been made applicable to section 47 of Sales Tax Act, thus, that application under section 5 of the Limitation Act has been in competitive filed, however, in appropriate case the High Court is competent to condone the delay provided it is substantiated that for any sufficient cause the appellant was prevented to file appeal within the prescribes period of limitation i.e. sixty (60) days and the delay of each day is to be satisfactorily explained. In computing the period of 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 sate Act would be relevant and the prescribed period of limitation will start running against the appellant from the date of service of notice. In a case where notice has been duly served, but appeal was not filed within the prescribed statutory period the burden shall heavily lie upon the appellant to prove, that he was precluded from filing the appeal within the prescribed period of limitation for any sufficient cause, which has to be explained and substantiated by undisputable facts. In the instant cases condonation of delay has been sought for in Civil Miscellaneous Application on the ground that the copy of 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 the refund of the amount involved in the case, whereas; on the other hand, in the rejoinder to the Misc. Application, it has been contended that copy of the impugned order passed by the Appellate Tribunal was forwarded to the appellant on the same day i.e. the date on which the order was passed by the Appellate Tribunal and also copy of the impugned order was delivered to the Customs Authorities by the res?pondent No. 1 on 2‑11‑2000, moreover; since the refund of the claimed amount was not being, made to the respondent NQ. 1, therefore, they approached to the Federal Tax Ombudsman through Complaint No. C‑151 K/2001 and the comments offered during such proceedings by the Deputy Collector, Sales Tax specifically contains reference of the impugned order, hence; in the light of the copies of the documents annexed with the rejoinder, it has been contended that the appellant had the active knowledge and notice of the impugned order, yet; the appeal was filed beyond the prescribed period of limitation. It is pertinent to tote that in the Misc. Application although; it was contended that copy of the impugned order was not served upon the appellant and on the other hand it has been admitted that on filing of claim for refund of the amount by the respondent No. 1 it had come to the notice of the Customs Authorities that the impugned order was passed by the Tribunal but no date with regard to the acquiring of such knowledge has been given or mentioned in the Misc. Application nor the copies of the documents annexed with the rejoinder to Misc. Application have been contested and controverted even during arguments, hence; in such view of the matter if can be safely assumed in view of document R/1 annexed with rejoinder to Misc. Application that by means of this document copy of impugned order, dated 30‑9‑2000 was delivered on behalf of the respondent ?company in the office of the appellant on 2‑11‑2000, which bears the official stamp and date indicating that by means of R/1 copy of the impugned order was received in the office of the appellant. Document R/2 is the letter, dated 2‑12‑2000 in which on behalf of the respondent No. 1 refund claim was lodged, pursuant to the impugned order and copy was enclosed therewith and this letter was also received by the office of the appellant on 4‑12‑2000. Copy of the comments offered by the Deputy Collector, Sales Tax, dated 4‑10‑2001 (Annexure R/3) submitted to the Federal Tax Ombudsman also contains reference of the impugned order passed by the Appellant Tribunal. In view of these undisputed documents as well as the plea taken in the Misc. Application it is quite evident that the appellant was fully aware and had the knowledge of the impugned order, but as herein fore‑noted, the date in respect of acquiring of knowledge or notice of the impugned order has not been mentioned in the Misc. Application and on the other hand, copies of the documents R/1. and R/2 sufficiently indicate that copy of the impugned order was delivered in the office of the appellant on behalf of the respondent No.1 respectively on 2‑11‑2000 and 4‑12‑2000, as both the documents bear official stamp of receipt of these documents with which the impugned order was also enclosed, hence; in view of these documents, receipt whereof has not been controverted or disputed, therefore, it can be safely assumed that copy of the impugned order was twice delivered in the office of the appellant on 2‑11‑2000 and 4‑12‑2000 by means of R/1 and R/2, but despite having received the copy of the order and having acquired notice of the same this appeal was presented to the Registrar of the Court on 25‑9‑2001 after a considerable delay. Although from the documents filed by the parties it does not appear as to on which date notice of the impugned order, if any; was served upon the appellant, but as it appears from the Annexure R/1 and R/2 that copy of the order passed by the Appellate Court was delivered twice in the office of the appellant on 2‑11‑2000 and 4‑12‑2000, therefore, in such view of the matter the appellant, if felt aggrieved of the order should have filed appeal within a period of 60 days from the date of delivery of the copy of the impugned judgment i.e. 30‑1‑2000 but after lapse of sufficient time period, the same was presented to the Registrar of the Court on 25‑9‑2001 and thus; the appellant in all fairness to have explained satisfactorily and accounted for delay of each day that for any sufficient cause he was prevented to file appeal within a period of sixty (60) days from the date of receipt of order; which he miserably failed to account for. The case‑law cited by the learned D.A.?G. have no application in the instant case on point of limitation for the reason that the judgment of the honourable Supreme Court reported in 1987 SCMR 1119, related to question with regard to the no maintainability and incompetence of the Constitutional petition on the ground of laches, whereas; in other cited judgment i.e. 2002 SCMR 738 the honourable apex Court altogether in respect of a different subject with reference to rule, 10 of the Central Excise Rules, 1944 held that object of the rule is to provide limitation in different situations arising out of levying and recovery of the excise duty, which cannot be made beyond the period of limitation and the said rule has nothing to do with the claims pertaining to the refund, but on the contrary it deals with those cases where some erroneous refund has been made and its recovery is involved, as such; these reported judgments have no relevancy and bearing on the point of limitation involved in the case. Thus this appeal, for the foregoing reasons, being hopelessly barred by time, is dismissed, leaving the parties to bear their own costs.
S.A.K./154/Q????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.