Sales Tax Act (VII of 1990)‑‑‑

‑‑‑‑S.47‑‑‑Central Excises Act (I of 1944), S.36‑C‑‑‑RiN al appeals‑‑ Remand of case‑‑‑Registered person/private firm was charged under various provisions of Sales Tax on different allegations‑‑‑Order in original recorded by Collector (Adjudication) was assailed before Tribunal with partial success as Tribunal maintained findings of Collector (Adjudication) on two charges while findings on the third charge were set aside‑‑‑Registered person and Revenue Department both aggrieved by judgment of Tribunal, filed respective appeals before High Court‑‑‑When both parties felt aggrieved of impugned order, it needed to be set aside in its entirety so that matter remained open for both of them to re‑assert their legal and factual positions‑‑‑Impugned order was set aside and appeal filed by registered person/tax payer would be deemed pending for fresh hearing and decision on all issues involved.

Sultan Mahmood for Appellant.

Nasar Ahmad for Respondent.

Date of hearing: 7th October, 2003.

ORDER

Through this single order we intend to dispose of S.T.A. 126 of 2003, C.A. 129 of 2003 and S.T.A. 132 of 2003.

2. These three appeals under section 47 of the Sales Tax Act, 1990 and section 36‑C of Central Excises Act, 1944, one by the registered person Messrs Riaz Bottlers (Pvt.) Limited and two by the Revenue assail an order recorded by the Customs, Excise and Sales Tax Appellate Tribunal, Lahore, dated 18‑6‑2003.

3. Messrs Riaz Bottlers (Pvt.) Limited (appellant in S.T.A. 132 of 2003 and respondent in S.T.A. 126 of 2003 and C.A. 129 of 2003) were charged under various provisions of Sales Tax Act on three counts. Firstly, that they had wrongly adjusted refund of Central Excise Duty as an input tax adjustment under Sales Tax Act, 1990 by misinterpreting a judgment of this Court, dated 15‑9‑1999 in Constitutional Petition No. 15188 of 1999. Secondly, that input tax adjustment on vehicles at Rs.17,47,830 was not available to the registered persons as the vehicles in question were not its stock in trade being engaged in manufacturing of aerated water. Thirdly that a sum of Rs. 5,48,602 was incorrectly adjusted against different invoices out of tax period.

4. The order in original recorded by Collector (Adjudication) Lahore on 20‑4‑2002 was assailed before the learned Tribunal with partial success. By way of the impugned order the learned Tribunal maintained the findings on the first two charges while the findings on charge No.3 were set aside on the finding that the appellant registered person insisted that input tax was availed for in the same tax period and that such claim was sought to be supported by number of invoices detailed in the impugned order which needed further consideration.

5. The registered person feels aggrieved of the maintaining of the findings on the first two charges while the department feels aggrieved of the remand order to the extent of adjustment of the aforesaid sum of Rs.5,48,602 out of the tax period.

6. The department is also of the view that Collectorate of Sales Tax was a necessary party to the proceedings but was not arrayed as a respondent in the appeal filed by the registered person. It is also stated that in absence of an appeal before the Tribunal under section 36 of the Central Excises, Act, 1944 the Tribunal could not set aside the aforesaid tax adjustment as under the provisions of the said Act it is not clothed with suo motu jurisdiction.

7. After hearing the learned counsel for the parties we are of the view that in the given situation when both parties, the tax payer as well as the Revenue feel aggrieved of the impugned order it needs to be set aside in its entirety so that the matter remains open for both of them to re‑assert their legal and factual positions.

8. The impugned order is accordingly set aside and the appeal filed by the registered person/tax payer shall be deemed pending for a fresh hearing and a decision on all issues involved.

9. Disposed of.

H.B.T./C‑39/LOrder accordingly.