MR. MUMTAZ HAIDER RIZVI, MEMBER (TECHNICAL).-(1). This is review petition preferred by the Collector of Sales Tax & Central Excise, Peshawar against the judgement of this Tribunal dated 29.04.2005 passed in Appeal No. 7(295)ST/IB/2000(PB) in the case titled M/s. Majeed Soap and Chemical Industry, Gadoon Amazia, Swabi vs. Collector of Sales Tax & Central Excise, Peshawar and other.
2. The background of the case is that the auditors of the petitioner's Collectorate had dug out that while enjoying exemption from payment of sales tax on their supplies by the respondent unit under SRO. 580(I)/91 dated 27.06.1991, they had continued to make supplies of taxable goods (soap) without payment of sales tax leviable thereon even after the expiry of exemption date 12.10.1997 and in this way, evaded sales tax to the tune of Rs. 9762172/- during the period November, 1997 to January, 1999. They were further alleged to have failed to register themselves with the Collectorate after the said expiry date and to have wrongly claimed input tax and so all these taxes were recoverable from them alongwith additional tax and penalty. Thus after issuing show cause notice to them by the Additional Collector of Sales Tax and Central Excise, Peshawar as adjudicating authority and hearing the parties, Order-in-Original No. 39 of 2000, dated 15.05.2000 was passed against them, whereby they were directed to pay the determined tax liability alongwith the additional tax under section 34 of the Sales Tax Act, 1990 (hereinafter referred to as the Act and penalty of 5% and 10% of the tax involved, which was imposed under sections 33(2)(cc) and 33(3)
(a) respectively of the Act.
3. Aggrieved of the Order-in-Original, the respondent unit had lodged appeal in this Tribunal, which was accepted by the Bench comprising the undersigned [Mr. Raj Muhammad Khan, Member (Judicial)] and Mr. Muhammad Wali Khan, Member (Technical) vide judgement dated 29.04.2005 leading to setting aside the Order-in-Original No. 39 of 2000. The petitioner feeling aggrieved of the judgement of this Tribunal has now filed the present review petition.
4. The impugned judgement of this Tribunal has been assailed by the petitioner, inter alia, on the grounds that this Tribunal has not considered the explanation regarding 'set up' embodied in the Notification No. SRO. 580(I)/91 dated 27.06.1991 and thus has 'nullified' the legal aspect of the case, which amounts to error apparent on the face of the record. That the judgement has created a legal infirmity in terms of the explanation regarding set up and. Due to the said legal infirmity in.
The order, the petitioner has deemed it appropriate to file this review petition instead of filing appeal before the Hon'ble Peshawar High Court, Peshawar, since the petitioner will not be in a position to question factual aspect of the case in such appeal. That the survey report dated 13.10.1992 was an undisputed document, which revealed actual production of soap made under half boiled system, but the petitioner was given by the Tribunal the benefit of non-compliance of law. It was added that the term 'set up' had already been explained in the aforesaid notification and did not require recourse to be taken to dictionary meaning thereof. The term 'set up' under the notification was to mean the date on which the industrial unit commenced its production including trial production. The survey report had incorporated the result of production when the respondent's plant and machinery were tested through experiment and the same amounted to trial production w.e.f., 13.10.1992 on which 2025 kgs of soap was produced. The petitioner relied on the authority reported as AIR 1967 SC 509 in giving meaning to the word 'set up' and prayed for dismissal of the appeal by declaring that the respondent's industry was set up at the moment with it was ready for trial production.
5. We have heard Departmental Representatives of the petitioner Collectorate and counsel for the appellant/respondent and have gone through the record of the case at length.
6. At the outset, it may be stated that the Sales Tax Act, 1990 does nowhere provide for review of any order of this Tribunal unlike analogous provisions available under the Customs Act, 1969 as per section 194-B(2) thereof and in section 35-C(2) of the Central Excises Act, 1944 both of which provide that 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 O') and shall make such amendments, if the mistake is brought to its notice bv the Collector of Customs or the other party to the appeal. Unfortunately, as stated earlier, such provision is not embodied in the Sales Tax Act, 1990 under which the impugned judgement has been delivered and is sought for to be reviewed.
7. Realizing non-maintainability of the present review petition under the Act, the petitioner has resorted to quote Order-47 of the Civil Procedure Code, 1908 read with section 21 of the General Clauses Act, 1897 in the subject of the petition, under which he has statedly filed this review petition.
8. Order-47 of the Civil Procedure Code, 1908 provides for review. However, this review is confined only to review of a decree or order of a Civil Court. Similarly, section 21 of the General Clauses Act, 1897 provides for amendment etc., in Notification, Order, Rule or By-laws and does not provide for 'review' in the legal sense as is embodied in the Customs and Central Excises Laws quoted above.
Such power cannot be stretched and placed at par with order of Authority reviewing its own decision under the authority conferred by statute.
9. The scope of 'review' in its intrinsic sense is limited and cannot be extended so as to include re- opening of an Order/ Judgement. By way of the present petition for review, the Collectorate of Sales Tax and Central Excise, Peshawar wants us to rehear the case afresh and reconsider earlier interpretation of the concerned SRO and terms used therein. The Collectorate is indifferent in stating its case in as much as while on the one hand it is stated that the impugned judgement had led to nullify the legal aspect of the case and has created a legal infirmity in terms of the explanation available at the end of the aforesaid notification having the force of law under section 13 of the Act, on the other hand the Collectorate has admittedly not deemed it appropriate to file an appeal against the impugned judgement of this Tribunal, as according to them, they could not agitate factual aspects of the case in such appeal. In these circumstances, we are constrained to reproduce para-8 of the impugned judgement as under:- "After hearing arguments from both sides, examining record of the case carefully and going through the judgment of the Honorable Peshawar High Court cited by the learned counsel for the appellants the position that emerges is that the department's case is based on the first survey report. The appellants also rely on this report along with other documents as mentioned above.
Therefore there is no dispute that the contents of the first survey report are accepted by both sides.
Similarly, other letters/reports of the Customs, Central Excise and Sales Tax Department relied upon by the appellants have not been disputed by the department. The only contention of the department is that experimental production of soap on 13.10.1992 means trial production and hence the five years' period for exemption of sales tax has to be calculated from this date. Perusal of the documents relied upon by the learned counsel for the appellants including the first survey report which is also relied upon by the department makes it difficult for us to agree to the viewpoint of the department. From the judgment of the Honourable Peshawar High Court the meaning of the expression 'set up' is crystal clear i.e. The 'set up' is complete once production for business commences and before that 'set up' is not complete. In this view of the matter production means including trial production means production for commercial consideration. Production of 2025 kg on experimental basis cannot be termed as production for commercial consideration by an industry with huge investment. Records of the department relied upon by the learned counsel for the appellants and not disputed by the department show that installation of machinery was not complete on 13.10.1992. These records also show that raw materials were imported and entered in the prescribed record (RG-2) in January 1994 and not before that date. Again, entry of manufactured goods i.e. Soap was made for the first time in the RG-I record on 20.02.1994. Both the entries in these records are properly authenticated by the Deputy Superintendent incharge of the unit. From the contents of CBR's letter referred to above, it is very much clear that it was meant for determination of quota of raw materials of the appellants unit for which even experiment of production was not necessary if the quota could be determined by comparing the unit with other similar units located in and outside Gadoon. Therefore an experiment made at a plant not fully operational can by no stretch of imagination be termed as trial production for the purposes of SRO 580(I)/91, dated 27.06.1991 specially when the unit was neither producing goods before the two hours experiments nor thereafter. No industrial unit can wait for two years for producing goods if it was installed fully as it involves huge investments and no one can afford such a delay. In the absence of evidence showing use of raw materials for production of soap and supply of the goods produced by the appellants during the disputed period, it is difficult for us to hold that the unit started production on 13.10.1992 since the evidence available on record shows otherwise i.e. Production was actually started on 08.01.1994."
10. It may be added that the authority of the Hon'ble Indian Supreme Court reported as AIR 1967 SC 509 relied upon by the petitioner in support of his contention, has already been mentioned by this Tribunal in its impugned judgment vide para-6 thereof. While the term 'set up' has been explained in the aforesaid notification, the notification remains scant to define or explain the term "trial production". It is because of this deficiency in the notification that the petitioner is also obliged to rely on a judgement of the Hon'ble Indian Supreme Court. This Tribunal has already given its verdict in this regard and does not find any reason to consider the issue any further.
11. Otherwise too, there is no mistake apparent in the impugned judgment to be rectified or