1. MR. ALHAJ FIROZ-UD-DIN, MEMBER (JUDICIAL).--(1). This appeal has been directed against Order- in-Original No. 34/1998, dated 5.6.1998 passed by Additional Collector of Sales Tax, Gujranwala.
2. Brief facts leading to this appeal are that an audit of the appellant's industry was conducted pertaining to the years 1995-96 and 1996-97 upto May, 1997 and as a result of which discrepancies pertaining to non-payment/short-payment of sales tax, inadmissible claim of input tax and violation of various provisions of the Sales Tax Act, 1990 were pointed out by the audit party. A show cause notice was served upon the appellants and case was fixed on 16.3.1998 when nobody appeared on behalf of the appellants. On 4.6.1998 the appellants were informed that if they wanted to avail the opportunity of defence they might do so. The Manager Accounts appeared on behalf of the appellants on the same date by requesting to give one week time to defence. This request on behalf of the appellants was not acceded and the Order-in-Original was passed ex-parte whereupon the appellants were held guilty by the Additional Collector of Sales Tax, Gujranwala and they were ordered to pay total amount of sales tax Rs. 11,93,762/- under section 36 of the Sales Tax Act, 1990 along with additional tax under section 34 ibid. A total amount of penalty Rs. 45,000/- was also imposed under different sections and sub-sections of the Sales Tax Act.
2. 3.We have heard the arguments of learned counsel for the parties and perused the record.
3. 4.The learned counsel for the appellants argued that impugned Order-in-Original was an ex-parte, bad in law and against the principles of natural justice. The ex-parte Order-in-Original was not maintainable in eye of law as the appellants were not afforded opportunity of being heard. He added that the case was fixed for hearing on 16.3.1998 when nobody appeared and it was adjourned to 4.6.1998 when the appellants had made request to the Adjudicating Officer for adjournment of one week so that the appellants might produce relevant record in support' of their contentions but the Adjudicating Officer did not afford an opportunity of hearing to the appellants and decided the case ex- parte on 5.6.1998. The Auditor of Sales Tax appeared on behalf of respondent department conceded to this fact that the appellants were not given an opportunity of hearing.
4. 5.After having heard the learned counsel for the parties, we find that the appellants were deprived of a precious right of being heard, which is against the norms of natural justice.
5. 6.There is a general principle of law that one should not be condemned unheard as laid down in (Maxim audi alteram parten). Expeditious trial and disposal of case are appreciable but it should not happen at the expense of justice. Court must take proper care to afford proper opportunity and should not give any impression of undue haste or rush up, such disposal will be at the expense of their fair name as it has been held in PLD 1995 LHR 1985. No Court should adjudicate upon a right of party who was not before it or to whom no notice was given. Such conduct violates principles of natural justice which vitiates all proceedings (Reliance is placed upon 1988 CLC Karachi High Court page 318) Maxim (audi alteram parten) should be deemed to be part of every statute which affects rights of citizens unless its application was excluded by express words or by necessary implication in statute as it has been held in 1995 MLD page 2886. As such the appellants has been deprived of precious right of hearing and consequently the Order-in-Original is liable to be set aside.
6. 7.For the forgoing reasons, we accept the appeal, set aside the impugned Order-in-Original and remand it to the learned Additional Collector of Sales Tax, Gujranwala with direction to decide it afresh by affording opportunity of hearing to the parties. As the appeal is old one, so we direct the Additional Collector of Sales Tax to decide the appeal within two months of receipt of this decision.
7. Announced.
8. All concerned be informed accordingly.