Central Excises Act (I of 1944)‑‑

‑‑‑‑S. 35‑C‑‑‑Disposal of appeal by Tribunal without touching questions of law including question of limitation raised therein regarding impugned show‑cause notice issued by authority‑‑‑Validity‑‑High Court in appeal, set aside impugned order and remanded case to Tribunal for its fresh decision after taking into all legal and factual pleas raised in memorandum of appeal.

Muhammad Murtaza Chunai for Appellants.

Raja Muhammad Iqbal for Respondents.

ORDER

This appeal under section 36‑C of the Central Excises Act, 1944 has been directed against the order, dated 18‑12‑2002 passed by the Customs Excise and Sales Tax Appellate Tribunal Bench No.3, Karachi in Central Excise Appeal No. 142 of 2001. The questions of law proposed in the appeal read as under:‑

(a) Whether the impugned order is erroneous and of no legal effect inasmuch as the Respondent No.1 failed to appreciate the fact that since the delay in payment was neither deliberate nor willful no additional duty under section 3B of the 1944 Act or penalty under Rule 210 of the 1944 Rules is leviable.

(b) Whether additional development surcharge is leviable inasmuch as no provision for the same is made in the Rule 3A(3) and 1961 Ordinance or Rule 8 of the 1967 Rules?

(c) Whether the impugned order is erroneous inasmuch as the respondent No. 1 failed to appreciate the fact that the show‑cause notice was time‑barred.

(d) Whether the Respondent No. 1 had erred in failure to appreciate that additional duty is reckoned until the day after payment (in this case 7‑5‑1999) and not until the date of detection.

At, the outset, learned counsel has made request that the documents filed on behalf of the appellant along with the statement, dated 30th November, 2004 may be taken on record. The copies of these documents have been supplied to the other side counsel. By consent such documents are taken on record.

Arguing the merits of this appeal learned counsel for the Appellant has taken us to the memorandum of Appeal presented before the Tribunal to show that the question of limitation as regards the impugned show‑cause notice issued by the Respondent No.1 was specifically raised by the Appellant in their memorandum of appeal under section 35‑B of the Central Excises Act, presented before the Tribunal but the Tribunal did not touch this important legal aspect of the case.

Mr. Raja Muhammad Iqbal, learned counsel for the Respondents did not dispute the above assertion of learned counsel for the Appellant.

In view of the 'above, without touching other questions of law raised in the appeal, this appeal is disposed of in the following terms:‑‑

The impugned order, 18‑12‑2002 is set aside and case is remanded to the Customs Excise and Sales Tax Appellate Tribunal Bench‑III, Karachi for fresh disposal in accordance with law after taking into considerable all the legal and factual pleas raised by the appellants in their memorandum of appeal. The Tribunal will be at liberty to take into consideration various documents placed before us by the Appellants along with their statement, dated 30th November, 2004. Learned counsel for the appellant undertakes to file photocopies of such documents before the Tribunal at the earliest.

S.A.K./P‑34/K??????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.