Sales Tax Act (VII of 1990)‑‑‑

‑‑‑‑S. 47‑‑‑Appeal to High Court‑‑‑Earlier case relating to other period remanded by Supreme Court to Tribunal for its fresh decision‑‑ Controversy involved in appeal before High Court was identical, which had been decided by Supreme Court‑‑‑High Court with consent of parties set aside impugned order and remanded case to Tribunal for its decision afresh after providing due opportunity of hearing to both parties and allowing them to raise any fresh question of fact or law.

Caltex Oil (Pakistan) Limited v. Collector, Central Excise and Sales Tax and others (PTCL 2004 CL 494) rel.

Muhammad Farogh Nasim for Petitioner.

Raja Muhammad Iqbal for Respondent.

ORDER

The above titled two appeals arise out of common order, dated 27‑6‑2002 passed by Customs, Excise and Sales Tax Appellate Tribunal, Karachi. The same are being disposed of by this single order.

2. At the outset, learned counsel for the appellant has brought to our notice judgment in the case of Caltex Oil (Pakistan) Limited v. Collector, Central Excise and Sales Tax and others PTCL 2004 CL 494). He submits that the dispute as regards the payment of sales tax by Messrs Caltex Oil (Pakistan) Ltd., pertaining to the period 16-8-1999 to 23-9‑1999, was subject matter of two separate proceedings before the Collector. For the period from 16‑8‑1999 to 31‑8-1999 case was decided against the appellant vide Order‑in‑Original No. 73 of 2001, dated 16‑7‑2001, which after further proceedings before the Tribunals, the, High Court of Sindh and the Hon'ble Supreme Court of Pakistan ended in passing of the aforesaid judgment, whereby the case has been remanded to the Customs, Excise, and Sales Tax Appellate Tribunal Karachi, with the following observations:‑‑

"We, therefore, without commenting on the merits of the case in either way, lest it may not prejudice the case of either party, are inclined to remand the case to the Customs; Excise and Sales Tax Appellate Tribunal, Karachi, for decision of the following question:‑‑

(a) Whether the sales tax was included in the price of the products fixed by the Federal Government or it was required to be charged separately on the supplies?

(b) Whether the notice was issued in accordance with law or not and if it was not issued as per requirement of law and was vague, what would be the effect?

(c) Whether in the given facts and circumstances of the case, the provisions of section 65 of the Sales Tax Act; 1990, would be invokeable or not?"

Referring to the same judgment, he further submits that to safeguard the interest of the respondents, further directions were issued in terms of para. 9 of the judgment, which reads thus:

"The parties however, shall be at liberty to raise any other question involved in this case, including the questions raised before this Court and the Tribunal, after providing proper opportunity of hearing to them, will, decide the matter afresh but this order shall be subject to the furnishing of bank guarantee of a scheduled Bank by the, petitioner equal to the amount of sales tax payable in terms of the judgment of Tribunal to the satisfaction of Collector of Large Tax Payers Unit, Karachi, within one month failing which this petition shall stand dismissed. However, as prayed by the learned counsel for the petitioner, the bank guarantee already furnished by the petitioner to the satisfaction of Nazir, High Court of Sindh at Karachi, under the direction of that Court if is still in existence and valid, may be transferred to the Collector of Large Tax Payers Unit, Karachi, and the deficiency if any, shall be covered by furnishing additional bank guarantee of a scheduled Bank within the above period. The parties shall appear before the Appellate Tribunal on 20‑9‑2004 and the Tribunal shall make efforts to decide the matter within three months. "

Learned counsel submits that as regards the remaining period of 1‑9‑1999 to 23‑9‑1999 in respect of same controversy of sales tax claimed by the respondent, the case was decided against the appellant vide Order‑in‑Original No. 117 of 2001, dated 29‑9‑2001, as confirmed by the Tribunal vide impugned order, which is subject‑matter of the present two appeals. He submits that in view of the above judgment of the Hon. Supreme Court of Pakistan in the earlier case of the appellant, in all fairness, the order challenged in these two appeals may also be set aside and the case be remanded to the Customs, Excise and Sales Tax Appellate Tribunal to decide the dispute, subject‑matter of these appeals also in the light of such judgment of the Apex Court and the questions proposed therein, which‑have been reproduced, above.

3. Mr. Raja Muhammad Iqbal, learned other side counsel, did not dispute that the controversy involved in the present two appeals is identical, which has been earlier decided by the Hon'ble Supreme Court of Pakistan in terms of the judgment referred above.

4. In view of the above undisputed position and by consent we set aside the impugned order and dispose of both these appeals in the terms that the Customs, Excise and Sales Tax Appellate Tribunal Karachi shall decide the above‑referred questions afresh, after providing due opportunity of hearing to both the parties. As ordered by the Hon'ble Supreme Court in the above‑cited judgment, both the parties are allowed to raise any fresh questions of fact or law before the Tribunal.

5. At this stage, it has been pointed out by Mr. Farogh Nasim that in pending Suit No. 1138 of 2002 relating to same controversy, under the orders of this Court, the appellant has furnished bank guarantee to the satisfaction of Collector of Customs, large Tax Payers Unit, which is valid and in force. He, therefore, submits that the said bank guarantee shall remain intact in terms of this order. However, if such bank guarantee is found short than the sum ordered by the Tribunal, then such deficit will be made good by furnishing fresh bank guarantee to that extent. Order accordingly.

S.A.K./C‑25/K Order accordingly.