CHENAB LIMITED through Director VS COLLECTOR OF SALES TAX, FAISALABAD
2008 P T D 509
[Lahore High Court]
Before Khawaja Farooq Saeed, J
Messrs CHENAB LIMITED through Director
Versus
COLLECTOR OF SALES TAX, FAISALABAD and another
Writ Petition No.198 of 2008, heard on 24/01/2008.
Sales Tax Act (VII of 1990)---
----Ss.45-A, 66 & 67---Constitution of Pakistan (1973), Art.199--Constitutional petition---Withholding of refund money---Petitioner was released refund under Refund Rules, 2002, but part of claim of petitioner/assessee was withheld by Authorities saying that it was due to the difference between the declared weight of goods exported and the actual weight---Matter was referred to C.B.R. which confirmed the refund claim of petitioner, but despite that A.C. (Refund) issued a show-cause notice to petitioner saying that refund claim of petitioner was not admissible---Petitioner filed appeal against said order, which was accepted by Collector (Appeals) and impugned order was set aside---Order passed in appeal had attained finality as no further appeal was filed against the same; but despite that Authorities denied claim of petitioner and again issued notice to petitioner---Matter in issue had been decided by the Collector (Appeals) in clear and unequivocal terms which had been confirmed by C.B.R. with a clear instruction that reference by the Collectorate was unwarranted and the order in appeal having attained finality, there was no ground for delay in implementation of the refund request of the petitioner---High Court directed that refund be issued to the petitioner' after looking into the actual facts with regard to calculation of the amount of refund.
PTCL 2007 CL 498 ref.
Sultan Ahmad Tanveer for Petitioner.
Muhammad Nawaz Waseer for Respondent.
Date of hearing: 24th January, 2008.
JUDGMENT
KHAWAJA FAROOQ SAEED, J.---The petitioner in this case is Limited Company registered under Companies Ordinance, 1984. The petition is against withholding of its money by the respondents even after exhausting all the legal remedies.
2. The facts in brief are that the petitioner was released refund under Refund Rules, 2002 and a part of the claim by the assessee was withheld. On an inquiry by the petitioner it was conveyed that it is due to difference between the declared weight of goods exported and the actual weight. It was also informed that the matter has been referred to the C.B.R. and till the same is resolved the practice of withholding part of the refund shall continue. After some reminders from the petitioner's side the dispute was finally resolved by the C.B.R. Vide its letter dated 1-4-2006 the C.B.R. confirmed that the relaxation given with regard to 5% variation in weight would be available to all the petitioner's cases. However, on 16-9-2006 A.C. Refund issued a show-cause notice saying that the refund claim of Rs.46,12,759 is not admissible. Petitioner's objection was rejected on 16-11-2006. The appeal filed by the assessee against the said order was accepted vide order in appeal dated 31-3-2007 wherein inter alia the petitioner's contentions were accepted in the following manner:-
"The plea of the appellant is that even before the issuance of show-cause notice their case was pending with the Department hence their case falls squarely within the ambit of laid down parameters of the C.B.R. He stated that benefit of 5% weight variation has been denied to them arbitrarily, unilaterally and without application of mind at the original stage. The DR was confronted with the situation and was asked to rebut the stance of the appellant and also to substantiate as to how before the passing of impugned order and even before the issuance of show-cause notice the matter of the appellant is not considered as pending and also on what grounds.
After going through all the relevant documents the DR could not rebut the stance of the appellant and was found silent. This being the position I find that not only before the issuance of show-cause notice even during the adjudication proceedings and before the formal judgment for the rejection of the refund claim, the matter was pending with the Department. The appeal is thus accepted and the impugned order is set aside having no merits.''
3. This order attained finality as later no appeal was filed: against the same. On further request for issuance of refund the Department again claimed that the matter has been referred to the C.B.R. The C.B.R. replied to the said query vide letter dated 9-10-2007 in the following words:
"The Board is of the view that the Collectorate reference at this stage appears. unwarranted. After the party's appeal has been accepted and no further appeal has been filed by the Collectorate the order-in-appeal has attained finality and there is no ground to delay its implementation."
4. It is on the basis of above facts that the writ petition was admitted to regular hearing and in compliance to the notice learned legal advisor was present today before this Court.
5. The case was adjourned on 16-1-2008 for today on request of learned legal advisor for seeking instructions from the respondents. It has been informed by him to this Court that notice under section 45-A has already been issued, hence refund has been withheld.
6. The petitioner's counsel admitted receipt of notice under section 45-A and commented that the same having been issued after the learned legal advisor made a request for time for deciding the matter out of the Court, is mala fide. Needless to maintain that section 45-A is a supervisory jurisdiction, which can be exercised only on the orders announced by the Authorities subordinate to them. Reference P.T.C.L. 2007 CL 498. The Collector Appeal is not a subordinate of Collector Customs.
7. Be that as it may, the matter in issue has been decided by Collector (Appeals) on 31-3-2007 in clear and unequivocal terms. Further the same has been confirmed by C.B.R. with a clear instruction that the Reference by the Collectorate to them was unwarranted and the order in appeal having attained finality there was no ground for delay in implementation of the refund request. The issuance of a notice is to circumvent the petitioner's writ petition before this Court. This cannot be allowed. The higher authorities in FBR may look into the matter on the basis of above facts. However in the meantime it is directed that the refund be issued to the petitioner after looking into the actual facts with regard to calculation of the amount etc.
8. Writ petition is accordingly disposed of.
H.B.T./C-25/LOrder Accordingly