PAKISTAN OIL FIELDS VS CUSTOMS CENTRAL EXCISE AND SALES TAX APPELLATE TRIBUNAL, ISLAMABAD
2009 P T D 1664
[Lahore High Court]
Before Syed Asghar Haider and Imtiaz Rashid Siddiqui, JJ
Messrs PAKISTAN OIL FIELDS
Versus
CUSTOMS CENTRAL EXCISE AND SALES TAX APPELLATE TRIBUNAL, ISLAMABAD
Tax Appeals Nos. 27 to 29 of 2005, heard on 26/05/2009.
Central Excise Act (I of 1944)---
----Ss.35C & 36C---Appeal to High Court---Order which disposes of an appeal by the Appellate Tribunal and served on the parties thereof under S.35C(3) of the Central Excise Act, 1944 is the one which can be challenged under S.36C of the said Act before the High Court---Appeals directed against the order passed under S.35C(2) of the Central Excise Act, 1944 are incompetent in terms of S.36C of the said Act---Principles detailed.
Farhat Nawaz Lodhi for Appellant.
Rizwan Akhtar Awan for Respondent.
Date of hearing: 26th May, 2009.
JUDGMENT
IMTIAZ RASHID SIDDIQUI, J.---This judgment will cover Tax Appeals Nos.27 of 2005, 28 of 2005 and 29 of 2005 as similar questions of facts and law are involved therein.
The appeals have been filed under section 36C of the Central Excise Act, 1944, as the same have arisen from the judgment, dated 7-10-2004 passed by the learned Customs, Central Excise and Sales Tax Appellate Tribunal, Islamabad Bench-I.
2. The facts common in all these appeals are that Hydrogen Sulphide Gas was produced and consumed for production of Sulpher by the appellant at it's Meya Oil Field. However, it 'failed to pay central excise duty thereon during the relevant tax period; the same was taken up in a show-cause notice. An adjudication process resulted in Order-in-Original wherein a demand was raised, by the respondents, for an amount of leviable excise duty, penalty and additional excise duty front the appellant. As an appeal before the lower appellate authority did not succeed; the matter thus ultimately rested in appeal with the learned Customs Central Excise and Sales Tax Appellate Tribunal.
These appeals were then heard and decided vide judgment, dated 27-4-2002. The learned Tribunal partially allowed the appeals wherein demand of principal amount of excise duty was kept intact; however the imposition of penalty and additional excise duty was set aside.
3. Aggrieved of the aforesaid judgment the appellant instead of an appeal under section 36C of the Central Excise Act, 1944, however, filed a petition under section 35C(2) of the aforesaid Act. These petitions were taken up by the learned Tribunal and after hearing the appellant, these were dismissed vide order, dated 7-10-2004. Against the mentioned orders, passed by the learned Tribunal, appeals under section 36C of the Central Excise Act, 1944 have been filed and a number of "questions of law" have been framed which according to the appellant are required to be answered herein.
4. At the very outset, an objection has been taken by the learned counsel for the respondent revenue that these appeals are not maintainable. It is the stance of said counsel that only orders which finally dispose of an appeal by the Tribunal, can be impugned under section 36C of the Act; according to him orders passed on petitions under section 35C(2) cannot be challenged in appeal before this Court under section 36C of the said Act.
The learned counsel for appellant however has controverted this stance of the counsel for respondents.
In order to appreciate the stated objection viz the very maintainability of these appeals, it is appropriate to analyze the aforesaid provisions of the Central Excise Act, 1944.
5. At the time when the issue arose, section 35C of the Act existed as follows:--
"35C Order of Appellate Tribunal.---(1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such order thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision. or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence; if necessary.
[Provided that appeal shall be decided within sixty days of filing the appeal or within such extended period as the Tribunal may, for reasons to be recorded in writing fix, provided that such extended period shall in no case exceed ninety days,]
(2) The Appellate Tribunal may, at any time within three years from the date of order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Collector of Central Excise or the other party to the appeal:
Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this subsection, unless the Appellate Tribunal has given notice to him its intention to do so and has allowed him a reasonable opportunity of being heard.
(3) The Appellate Tribunal shall send a copy of every order passed by it under this section, disposing of an appeal, to the Central Excise Officer and the other party to the appeal.
(4) Save as otherwise provided in section 36C, an order passed by the Appellate Tribunal shall be final.
6. A perusal' of the aforesaid provision shows that an order, which disposes of an appeal by the learned Tribunal and served on the parties thereof under section 35C(3) of the Act, is the one which can then be challenged under section 36C of the said Act before the High Court.
Section 36C, relevant portion thereof as it existed at the relevant time, as follows:
"36C. Appeal to High Court.---(1) An aggrieved person or the Collector may file an appeal in the High Court in respect of any question of law arising out of an order under section 35C.
(2) The appeal under this section shall be filed within sixty days of the date upon which an aggrieved person or the Collector is served with notice of an order under section 35C.
(3) -------------------------------------------------------
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7. A reference to section 35C, as referred above, manifests that in terms of subsection (1) thereof, the learned Tribunal inter alia may pass such an order as it may think fit, which confirms, modifies or annuls the decisions or orders before it; the stated exercise of powers under section 35C(l) per force of law results in final disposal of the lis before the learned Tribunal.
These orders, which result in disposal of the appeals, are required to be sent to the parties of the appeal under section 35C(3) of the Act.
8. However, under subsection (2) to section 35C, a different procedure is given for enabling rectification of any mistake apparent from the record; on the basis thereof, learned Tribunal is empowered to amend any order passed by it under subsection (1) of the referred section and make such an amendment if such a mistake is brought to its notice.
It is also provided in the referred subsection that if the amendment aforesaid is likely to enhance or reduce the liability, then the learned Tribunal has to issue notice to the parties likely to be affected thereby and has to hear the same in this regard.
9. In the same sequence orders passed by the learned Tribunal which result in disposal of the appeal as well as are served on the affected 'parties thereof, as provided under section 35C(1) read with subsection (3) thereof, the statute provides a right of a appeal under section 36C. The aggrieved party then can file appeal under section 36C of the Act before the High Court in relation to any question of law arising out of an order under section 35C.
10. Indeed, it is an admitted fact that against the appellate order passed by the learned Tribunal, in the year, 2002, the appellant did not file an appeal before the High Court as referred above but instead approached the learned Tribunal in order to obtain rectification of the order passed by it. The said petition, as detailed above, was deliberated and dismissed by the learned Tribunal in the year, 2004. The precise issue foremost is whether thereafter an appeal against the same or against the main appellate order can be filed herein i.e. an appeal under section 36C of the Act.
11. The powers of the learned Tribunal under section 35C(2) is to amend" a "mistake" in its final order, in the form of rectification, if the Tribunal is convinced thereof. The provisions of 'subsection (2) aforesaid as well as the phraseology contained therein shows that this Power of the learned Tribunal is limited to rectify a mistake, if found, which will result in an amendment of the order. This power is limited and different from a review of the judgment or order. This word "review" entails the concept of revising the order or judgment; the very power if invested by statute and exercised, can result in setting aside the entire order/judgment passed by the learned Tribunal.
However, in contradiction "rectify" "amend" "mistake". are words which in the context of given phraseology manifest a limited power under which the order/judgment cannot be set aside in entirety; however a limited modification can take place, thereunder, in an order/ judgment by the Tribunal.
12. A reference to the impugned order in these appeals show that the learned Tribunal had refused to accept that any mistake existed in its final order passed in the year, 2002 whereby the appeals were finally disposed of under section 35C read with subsections (1) and (3) thereof. The questions of law, as framed by the appellant do not arise in these impugned orders which were passed under section 35C(2) of the Act and rejected the requested amendment in the main appellate judgments.
Admittedly the final order, dated 2-5-2002, passed under section 35C of the Act has not been challenged in this Tax Appeal; even if it had been challenged, the same would now be barred by limitation because such an order can only be challenged within a certain time as provided in section 35C(2) of the Act.
Similarly, under the Act, if any one opts for a recourse to section 35(2) of the Act and seeks amendment of the final order of the Tribunal passed, under this section, then in fact he accepts the main theme of the order/judgment but only seek an amendment thereof. In such an eventuality, he is precluded to file an appeal subsequently under section 36C of the Act; even otherwise section 36C of the Act does not provide for an appeal against an order passed under section 35C(2) thereof since such an order does not finally disposes of the appeal but only relate to a requested amendment.
13. On the basis of the deliberations contained herein, we are of the considered view that these appeals directed against the order, dated 7-10-2004 passed under section 35C(2) of the Central Excises Act, 1944 are incompetent in terms of section 36C of the aforesaid Act.
14. These appeals are accordingly dismissed as not maintainable.
M.B.A./P-23/LAppeals dismissed.