COLLECTOR OF CUSTOMS, CENTRAL EXCISE AND SALES TAX, MULTAN VS DATA STEEL PIPE INDUSTRIES (PVT.) LTD., RAHIM YAR KHAN, 2008 PTD-LAHORE-HIGH-COURT-LAHORE 1203 (2008)

Sales Tax Act (VII of 1996)---

----S. 47---Limitation Act, (IX of 1908), Ss.29(2) & 5---Appeal to High Court---Limitation---Appeal against judgment of Appellate Authority which was to be filed within 60 days of service of notice of order passed by Appellate Tribunal under S.46 of Sales Tax Act, 1990, was filed beyond said period---No departure from the express provision of Sales Tax Act, 1990 providing limitation for filing appeal, was permissible--Period of limitation prescribed by said special statute could not be condoned as section 29(2) of Limitation Act, 1908 envisaged that provisions of S.5 of the Limitation Act, 1908 were not applicable to special statutes---Appeal filed beyond prescribed period of limitation could not be entertained and proposed question could not be answered-.--When law required something to be done in a particular manner, then same must be done in that manner or may not be done at all.

Ahmad Raza for Appellant.

Mudassar Shuja ud Din for Respondent.

ORDER

This single order shall dispose of S.T.As Nos.10 to 16, 18, 19 and 24 of 2006 as common questions of law and facts are involved.

2. The appellant in this Sales Tax Appeal under section 47 of the Sales Tax Act, 1990, has assailed the judgment of Customs Federal Excise and Sales Tax Appellate Tribunal and raised various questions of law, arising out of the judgment of learned Tribunal:

(i) Whether learned Appellate Tribunal has not committed an error while not considering the memo. of the appeal and has given the decision on the ground which were not mentioned in memo. of appeal and were not argued before the lower forum and even no objection was raised in written reply of the show-cause notice?

(ii) Whether the Customs Central Excise and Sales Tax Appellate Tribunal has not erred in law while interpreting the judgment of apex court in case titled Assistant Collector Customs v. Khyber Electric Lamp 2001 SCMR 838 wherein it has been observed that if the taxpayer has evaded the tax deliberately and the contention of the department is indicated in show-cause notice then show cause notice is valid?

(iii) Whether respondent No.2 learned Appellate Tribunal has not committed an error while not considering the facts that evasion on the part of respondent No.1 is deliberate act with mala fide intention and it is sufficient for invoking the provisions of law and merely not mentioning the relevant section is not material?

(iv) Whether learned Appellate Tribunal has not fallen into an error while placing the reliance on the judgment of the apex Court mentioned above as in said case the show-cause notice was time-barred. But in present case show-cause notice is within a period of limitation so the judgment referred by the Appellate Tribunal is distinguishable from the present case?

3. The judgment of the learned Tribunal was received by the appellant on 2-4-2005 vide diary No.1037, which fact is endorsed on the said judgment. The appeal against the order of Tribunal under section 46 of the Act, 1940, was filed in this Court on 31-5-2005. Certain objections were raised by the office and appeal was re-filed after removal of objections and that too, beyond the prescribed period: Section 47(2) requires mention, which is re-produced below:---

"(1) An appeal shall lie to the High Court in respect of any question _ of law arising out of an order under section 46.

(2) The appeal under this section shall be filed within sixty days of the date upon which the aggrieved person or the Collector is served with notice of an order under section 46.

(3) Where an appeal is filed under subsection (1) by the aggrieved person, it shall be accompanied by a fee of one hundred rupees.

(4) The appeal before the High Court shall be heard by a bench of not less than two Judges, of the High Court.

(5) The High Court upon hearing the appeal shall decide the question of law raised therein and shall deliver judgment thereon specifying the grounds on which such judgment is based and shall send a copy of the judgment under the seal of the Court to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case in conformity with such judgment.

(6) Notwithstanding that an appeal has been made to the High Court, the tax shall be payable in accordance with the order under section 46.

(7) Where the amount of tax is reduced as a result of the judgment in the appeal, the amount of tax overpaid shall be refunded unless the High Court, on application given by the Collector within thirty days of the receipt of the judgment of the High Court that he intends to seek leave to appeal to the Supreme Court, makes an order authorizing the Collector to postpone the refund until the disposal of the appeal by the Supreme Court.

(8) The cost of the appeal shall be in the discretion of the Court."

An appeal according to the above provision of law has to be filed within sixty days (60) days of service of notice of order under section 46.

4. The provisions of Act, 1990, provide for limitation for filing of appeal. No departure from the express provision of law is permissible. The period of limitation prescribed by special statute, cannot be condoned as section 29(2) of the Limitation Act, 1908 envisages that provisions of section 5 of the Limitation Act are not applicable to special statutes.

5. The appellant has filed instant appeal beyond the prescribed period of limitation it cannot be entertained and proposed questions cannot be answered. It is settled law that when law requires something to be done in a particular manner then same must be done in that manner or may not be done at all.

6. For the foregoing, we do not entertain this time barred appeal and dismiss the same on this short ground.

H.B.T./C-6/LAppeal dismissed.