Messrs YOUNAS FURNITURE, GUJRAT VS CUSTOMS, EXCISE AND SALES TAX, APPELLATE TRIBUNAL, BENCH-II, LAHORE, 2006 PTD-LAHORE-HIGH-COURT-LAHORE 506 (2005)

Sales Tax Act (VII of 1990)---

----S.3---S.R.O. 627(I)/95, dated 2-7-1995---Manufacture and supply of wooden furniture---Demand of sales tax as per standard rates---Appellant as manufacturer-cum-retailer of furniture claimed concession of fixed tax under S.R.O. 627(I)/95, dated 2-7-1995---Tribunal had found that appellant being a manufacturer of furniture was not entitled to such concession---Validity---Such notification provided concessional fixed rates only to a retailer of furniture and not a manufacturer or manufacturer-cum-retailer---Appellant in memo. of appeal had not raised objection as to findings of Tribunal regarding his status as manufacturer of furniture---Appellant could not detract from his such admission---Determination of status of appellant as a manufacturer or retailer was a question of fact settled by Tribunal as final arbiter of facts---No question of law arose from impugned order---High Court dismissed appeal in circumstances.

Dr. Ilyas Zafar for Appellant.

Izharul Haq for Respondents.

Date of hearing: 7th December, 2005.

JUDGMENT

MUHAMMAD SAIR ALI, J.---The appellant i.e. Younas Furniture, Railway Road, Gujrat was served a show-cause notice dated 8-3-2000 (as amended through corrigendum dated 31-12-2001) by the Additional Collector (Adjudication) Gujranwala demanding cause for non-payment of sales tax amounting to Rs.8,97,830 upon the manufacture and supply of wooden furniture valuing Rs.49,87,945 during 1997-98. The appellant's reply thereto qua payment of fixed sales tax amounting to Rs.1932 as a supplier of furniture per S.R.O. No.627(I)/95, dated 2-7-1995 was accepted and show-cause notice was vacated by the Deputy Collector (Adjudication) Gujranwala.

2. Aggrieved therefore, the Collector of Sales Tax and Central Excise filed an appeal before the Customs, Central Excise and Sales Tax Appellate Tribunal, Lahore. The appeal was accepted by the Tribunal through order dated 14-5-2005 for the following reasons:

(i) Mr. Akhtar Javed i.e. the brother and representative of the appellant during the course of appeal proceedings admitted the appellant to be a manufacturer of the wooden furniture; and

(ii) Under S.R.O. No. 627(I)/95 dated 2-7-1995, the concession of payment of fixed sales tax per the prescribed rates was available to the retailers only and not to the manufacturer who were required to pay the sales tax as per the standard rates.

The order in original dated 6-2-2002 was thus set aside and the appeal was disposed of. Hence the present further appeal.

3. The learned counsel for the appellant contended that the appellant as a manufacturer-cum-retailer was entitled to the concession of payment of fixed tax under S.R.O. No. 627(I)/95, dated 2-7-1995. And that the learned Tribunal condemned the appellant unheard as the appellant's brother and representative was not present on the day of the arguments though Mr. Akhtar Javed had been present on all other hearings on behalf of the appellant.

Contrarily Mr. Izharul Haq Sheikh, Advocate appearing for the respondents stated that no question of law was either raised, framed or canvassed by the appellant in the memo. of appeal or from the bar. And that the question whether the appellant was a manufacturer or a retailer or a manufacturer-cum-retailer was a question of fact decided by the learned Tribunal against the appellant. Also that identically it was a fact on record that Mr. Akhtar Javed had appeared as the brother and representative of the appellant during the appeal proceedings before the learned Tribunal.

4. Having heard the learned counsel for the parties, we find a lot of substance in the submissions made by the learned counsel for the Revenue. In the memo. of appeal, no objection has been raised as to the findings of the learned Tribunal that the appellant being a manufacturer of the furniture, was disentitled to avail of the fixed rates prescribed in S.R.O. No.627(I)/95, dated 2-7-1995. The appellant expressly admitted in para. 1 of the appeal that "the appellant worked as manufacture-cum? retailer of wooden furniture for the period 1997-98". The appellant cannot therefore detract from the admission made in the memo. of this appeal. The Notification admittedly provides concessional fixed rates only to a retailer of the furniture and not to a manufacturer or manufacturer-cum-retailer.

5. Even otherwise the determination of category and status of the appellant as a manufacturer or a retailer of the wooden furniture is a question of fact settled against the appellant by the learned Tribunal as the final arbiter of facts.

6. Furthermore the order sheet of the learned Tribunal filed with this appeal by the appellant shows that on 16-9-2002, 28-10-2002, 17-2-2004 and 18-3-2004, Mr. Akhtar Javed; the brother and representative of the appellant, participated in the appeal proceedings in the learned Tribunal but absented himself on 22-4-2004 when the arguments were heard by the learned Tribunal.

7. We note that on 18-3-2004, the appeal was adjourned to 22-4-2004 (the day of arguments) in the presence of and on the request of Mr. Akhtar Javed. The appellant thus could not claim unawareness of the date when the arguments were heard. Instead of being present himself or through a counsel, Mr. Akhtar Javed chose to be absent. The appellant therefore cannot be allowed premium for volunteering to remain absent on 22-4-2004.

8. Even otherwise the express admission of the appellant in the memo. of this appeal to be a manufacturer of the wooden furniture, cannot improve the case of the appellant on rehearing by the learned Tribunal. This Court nevertheless granted time consuming hearing to the C learned counsel for the appellant to show the appellant's entitlement as a manufacturer of the wooden furniture to the fixed sales tax rates under the Notification which applied only to the retailers. The learned counsel for the appellant was unable to make out such a case for the appellant.

9. In view of the above, no question of law arises from the impugned order to deserve an answer by this Court. This appeal is therefore dismissed.

S.A.K./Y-16/L???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.