Messrs LION STEEL INDUSTRIES (PVT.) LTD, through Chief Executive VS CHAIRMAN CUSTOMS, CENTRAL EXCISE AND SALES TAX APPELLATE TRIBUNAL, LAHORE, 2007 PTD-LAHORE-HIGH-COURT-LAHORE 2162 (2006)

Sales Tax Act (VII of 1990)---

----Ss. 47 & 46---Civil Procedure Code (V of 1908), O.XX, R.3 & OXLI, R.31---Appeal to High Court---Judgment of the Court---Requirements---Under provisions of OXX, R.3, C.P.C. judgment would be dated and signed by the Judge in open Court at the time of pronouncing same---Order XLI, R.31, C.P.C, also envisaged that judgment of the Appellate Court would be signed and dated by the Judge at the time of pronouncing same---Judgment must be dated; in ordinary circumstances an omission by a Judge to date and sign the judgment at the time of its pronouncement, though was a mere irregularity, but such omission coupled with the other circumstances, would. lead to many implications, one of which, being the period of limitation for-tiling appeal, inasmuch as it could prejudice the case of the appellant---Impugned undated judgment was set aside and appeal under S.46 of Sales Tax Act, 1990 would be deemed to be pending before Appellate Tribunal.

Munawar Iqbal Duggal for Appellant.

Amna Warsi for Respondents.

ORDER

Briefly stated facts relevant for the decision of the present appeal are that respondent No.3 issued a show-cause notice, dated 3-5-1995, to the appellant requiring it to pay sales tax on quantity of wastages obtained during manufacturing of steel structure supplied to WAPDA in the years 1992 to 1994 against international tender. The appellant contested the show-cause notice through filing its reply. The Deputy Collector Sales Tax, after hearing the parties, came to the conclusion that the charges levelled in the show-cause notice are proved and thus, the appellant was directed to pay sales tax amounting to Rs.7,83,227 along with additional tax and surcharge, vide order dated 1-8-1995. A penalty of Rs.5,000 was also imposed. Appellant's appeal against the said decision was dismissed by the Collector Sales Tax Appeals (respondent No.2), vide judgment dated 18-9-1997. The case was then taken up to the Tribunal, which remanded the case to respondent No.2. In the post remand proceedings, Collector of Sales Tax (Appeals-II) rejected appellant's appeal, vide judgment dated 18-10-1999. The appellant, assailed the said decision before respondent No.1, through filing appeal under section 46 of the. Sales Tax Act, 1990, which was heard on 25-11-1999, and the orders passed by respondents Nos.2 and 3 were modified, vide impugned judgment, hence the present appeal.

2. Learned counsel for the appellants contends that the learned Appellate Tribunal heard appellant's appeal on 25-11-1999, the judgment was reserved and it was signed on 27-1-2000, when one of the Members of the Tribunal (Muhammad Aslam) ceased to be the Member of the Tribunal, therefore, impugned order is not sustainable in law. Conversely the learned counsel for the respondents states that the appeal was not decided on 27-1-2000, as the said date, as indicated in the impugned order itself, relates to the date of sending copy of the appellant.

3. We have heard he learned counsel, examined the available record and perused the impugned judgment. Appellant's appeal (Appeal No.607/LB of 1999) was heard by the learned Appellate Tribunal, on 25-11-1999, before whom the parties were represented by Tahir Attique Paracha and Ms. Rukhsana Yasmin, D.R. However, we could not find date of judgment, which has been impugned before us. We are in agreement with the learned counsel for the respondents that the date viz. 27-1-2000, mentioned in the last page of the impugned judgment (page 42 of the file) relates to the date, when certified copy of the impugned order was issued to the appellant and it cannot be construed as the date of the judgment, as canvassed by the learned counsel.

4. Having said that, when the learned counsel was asked to demonstrate from certified copy of the impugned judgment as to what is the date of judgment, she despite her best efforts could not point out from the record of the case as to when and on which dale, the appeal was decided. It is established on record that although the case was heardon 25-11-1999 and the judgment was signed, yet the same was not dated. It is not discernible from the certified copy of the impugned judgment, as to when the judgment was pronounced, as it is undated. If it be taken that the judgment was announced, signed and pronounced on 27-1-2000, then the learned counsel of the appellant is right in submitting that the said judgment is not valid and legal judgment, as Muhammad Aslam, one of the Members of the Tribunal ceased to hold office on the said date. We also find affidavit of Tahir Attique Paracha, Advocate sworn on 6-3-2000, on record wherein it has been staled that the hearing of the appeal was concluded on 25-11-1999, the Member who authored the judgment relinquished his charge on 1-1-2000 and the judgment was delivered on 27-1-2000. The contents of the said affidavit arc unrebutted as the respondents failed to file any counter? affidavit.

5. Now the question arises as to what is the effect of the judgment, which is not dated. Order XX, Rule 3, C.P.C. provides that the judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it. Similarly Order XLI, Rule 31, C.P.C., inter alia envisages that the judgment of the Appellate Court shall be signed and dated by the Judge at the time of pronouncing it. Joint reading of the aforesaid provisions of law leads to the conclusion that the judgment must be dated. Although in ordinary circumstances an omission by a Judge to Mate and sign the judgment at the time of its pronouncement is a mere irregularity, yet in the instant case, we feel that the said omission coupled with the other circumstances, would lead to many complications, one of which the period of limitation for filing the appeal, inasmuch as it may prejudice the case of the appellant.

6. In the above perspective, we are of the view that the impugned undated judgment is not sustainable in law and we are persuaded to set it aside and remand the case to the learned Appellate Tribunal.???????????

?7. In view of the above, the present appeal is allowed and the impugned undated judgment is set aside. Resultantly, appellant's appeal under section 46 of the Sales Tax Act, 1990 shall be deemed to be pending before the Customs, Excise anal Sales Tax Appellate Tribunal, who shall decide the matter, afresh, after hearing the parties and of course in accordance with law.

H.B.T./L-10/L????????????????????????????????????????????????????????????????????????????????????? Order accordingly.