JUDGMENT: MR. SARFARZ AHMAD KHAN, MEMBER (TECHNICAL).--(1). This judgment disposes of three appeals as mentioned in the title since these involve common issues on law and facts.
Appeal No, 2617/LB/2001 was filed by Leghari Beverages Pvt. Ltd., Rahim Yar Khan against Central Excise Refund Order No, 2/01, dated 22.09.2001 passed by Additional Collector of Customs, Sales Tax & Central Excise, Multan whereunder the appellant's refund claim for an amount of Rs, 1386814.28 and Rs, 194442.6 as central excise duty was rejected.
Appeal No, 2618/LB/2001 was filed by Multan Beverages Pvt. Ltd., Multan against Central Excise Refund Order No, 1/01, dated 15.09.2001 passed by the same adjudicating officer whereunder the appellant's refund claim for an amount of Rs, 1161471/- was rejected.
Appeal No, 602/LB/2004 was filed by Rehman Beverages Pvt. Ltd., Lahore against Order-in-Appeal No, 114/2004, dated 11.06.2004 passed by Collector of Customs, Sales Tax & Central Excise (Appeals), Lahore whereunder the appellant's appeal against Order-in-Original No, 46/2003, dated 01.04.2003 passed by Deputy Collector Sales Tax Refund, Lahore was rejected. Earlier the appellant filed refund claim for an amount of Rs, 1335854 as sales tax pertaining to the year 1999 which was rejected by Deputy Collector Sales Tax Refund vide his Order-in-Original No, 46/2003, dated 01.04.2003. As aforesaid, appeal filed against the said impugned Orders-in-Original was also rejected by the Collector (Appeals), Lahore. The appellants have impugned both the orders.
2. All the three appellants are manufacturers of aerated water/beverages which was subject to central excise duty and sales tax and all the three appellants were duly licensed/registered with the respective central excise/sales tax authorities. During the year 1999 the appellants excluded the amount of chilling charges at the rate of 10% of consumers price, containing aerated water/ beverages up to 250 ml and at the rate of 5% of the consumers price where bottle exceeded 250 ml in compliance with the CBR's instructions vide C. No, 1(20)/CEB/94, dated 9th Oct., 1994.
Subsequently the CBR vide its C. No, 1(7)/CEB/99, dated 12.06.1999 addressed to all Collectors of Sales Tax and Central Excise withdrew its earlier instructions dated 09.10.1994 and ordered that central excise duty shall be calculated and paid on the basis of retail price and no deduction whatsoever on account of chilling charges shall be made by any manufacturers of aerated water/beverages. For the purpose of sales tax the same retail price inclusive of the amount of central excise duty was to be taken. The appellants, like other manufacturers of beverages started paying central excise duty and sales tax on the retail price inclusive of, among other things, chilling charges in compliance with CBR's aforesaid instructions dated 12.06.1999 and on the other hand this action of the CBR was assailed before the Honourable Lahore High Court vide Writ Petitions No, 15188, 18769, 14794, 10607 and 10969, all of 1999 and others which held that chilling charges could not be included in the retail price for the purposes of levy of central excise duty, which was automatically to effect sales tax as well. The respondent department filed appeals before the Honourable Supreme Court of Pakistan which were dismissed vide judgment dated 31.01.2001 in Civil Appeals No, 1512, 1686 of 1999 and Civil Petitions No, 1916-L of 1999 and 185-L, 198-L, 865-L, 9951- L, 1060-L and others of 2000 (reported as NLR 2001 Tax). The impact of these judgments was that the impugned central excise duty paid on retail price inclusive of chilling charges and also sales tax paid on retail price inclusive of chilling charges as well as of central excise duty was not due and the appellants like other beverages manufacturers filed refund claims with the respective central excise and sales tax authorities of the excess amount of central excise duty and sales tax paid on retail price which included chilling charges. In the case of Appellant No, 1 and 2, the adjudicating officers rejected the refund claims on the ground that incidence of duty (paid on retail price inclusive of chilling charges) having already been passed on to the consumers, hence refund was not due in terms of section 3D of Central Excises Act, 1944. By applying the same logic on the basis of identical provisions in the form of section 3B in Sales Tax Act, 1990 the refund claim of Appellant No, 3 was rejected by Deputy Collector Sales Tax Refund vide his impugned Order-in- Original No, 46/2003, dated 01.04.2003 and the same order was confirmed by the Collector (Appeals), Lahore vide his Order-in-Original No, 114/2004, dated 11.06.2004 in the case of Appellant No, 3.
3.We have heard contentions of both the sides and we find that all the issues involved in these appeals have already been decided by this Tribunal in an identical case vide its judgment dated 16.06.2004 in Appeal No, 1644/LB/2004 (titled Naubahar Bottling Co., Gujranwala). The relevant portion of the said judgment is reproduced below:-- "Irrespective of the opposing contentions of both the sides regarding passing on or not passing on incidence of tax to the consumers, we hold that this issue is not relevant to the present case. When the respondent department collected central excise duty, and also sales tax on retail price inclusive of chilling charges in terms of CBR's aforesaid directives dated 12.06.1999 and the appellant paid the same, it was not due to mis-apprehension of any of the provisions of Sales Tax Act or otherwise. At the time of payment of central excise duty, and dependent thereon sales tax, on retail price inclusive of chilling charges this was the requirement of law as interpreted/directed by CBR vide its directive dated 12.06.1999. As held in earlier judgment dated 13.02.2002 of Lahore Bench-I of this Tribunal in the aforesaid appeal, "criteria of incidence of tax having passed on to the consumers applies only to that tax/charge which was collected, due to mis-apprehension of any provisions of the Sales Tax Act or otherwise, but the tax/charge was otherwise not payable, or which was paid in excess than actually payable that being so, the criteria of the incidence of tax having been passed on to the consumer does not apply here".
The collection of central excise duty and dependent thereon the sales tax on the retail price inclusive of chilling charges was perfectly legal w.ef. 12.06.1999 till the time it was declared unlawful by the Honorable Lahore High Court vide its judgment in Writ Petition No, 15188, 18769, 14794, 10607 and 10969 all of 1999 and others read with dismissal of appeals of the respondent department by the Honorable Supreme Court of Pakistan vide its judgment dated 31.01.2001 in Civil Appeals No, 1512, 1686 of 1999 and Civil Petition No, 1916-L of 1999 and others reported as NLR 2001 Tax. Therefore, the provisions of Section 3B of Sales Tax Act, 1990 do not get invoked here. Resultantly both the Orders- in-Original No, 17, dated 18.06.2002 passed by Deputy Collector Sales Tax Refund, Gujranwala and Orderin-Appeal No, 1208/2002, dated 30.08.2002 passed by Collector of Customs, Sales Tax and Central Excise (Appeals), Lahore are set aside and the appeal is accepted".
4. All the three appeals are accordingly decided in the light of our earlier judgment dated 16.06.2004 in Appeal No, 1644/LB,2004 and accordingly all the three appeals are accepted and the respective impugned orders are set aside. In the case of Appellant No, 1 and 2 Collector of Sales Tax and Central Excise, Multan and in the case of Appellant No, 3 Collector of Sales Tax and Central Excise, Lahore are directed to finalize the refund claims of the appellants within forty five days from the date of issuance of this judgment, if complete refund documents have already been submitted by the appellant. In case any document relating to the refund claim in question is still wanted the Collector shall ask for the same from the appellant within fifteen days from the issuance of this judgment and the appellant shall supply the said document immediately to enable the Collector to decide the case within the aforementioned given time.