This order will dispose of C.A. No. 14-S of 1999 and C.A. 15-S of 1999 in which common questions of law and fact are involved.
2. The main issue raised in the instant appeal relates to the chargeability of additional tax, surcharge and penalty. The claim of the appellant qua additional tax, surcharge and penalty was declined by the Customs, Excise and Sales Tax Appellate Tribunal, Lahore Bench, by order , dated 14-1-1999. Learned Tribunal dismissed the appeal on the ground that sales tax department has failed to establish that non-payment of sales tax was deliberate and wilful.
3. Learned Division Bench of this Court in the case of "Additional Collector Sales Tax v. Messrs Nestle Milk Pak Ltd." 2005 PTD 1850 has declared the imposition of penalty and additional tax etc. Unjustified in law, with regard to non-payment of sales tax, within the tax period which was neither wilful nor mala fide evasion of duty.
4. It has been held by the learned Tribunal in the impugned decision that no tangible evidence is available with the Department whereby it could be established that the appellants have indulged in the act of evasion. The question whether non-payment of sales tax, was wilful and mala fide is a question of fact and not of law, therefore, we are not inclined to entertain the application under section 47 of the Sales Tax Act, on the question of fact.
5. The instant appeal is not maintainable and is dismissed as such. .