' ANWAR ZAHEER JAMALI, J.---By this appeal under section 47 of the Sales Tax Act, 1990 (hereinafter referred to as the Act), appellants have challenged the order dated 12-6-2002 passed by the Customs, Excise and Sales Tax Appellate Tribunal Karachi Bench-I, in S.T.A. No,77 of 2002, whereby their appeal under section 46 of the Sales Tax Act was dismissed and resultantly the order-in- original dated 31-12-2001 passed by Collector of Customs, Sales Tax and Central Excise, imposing additional tax, and penalty equivalent to 30% of the amount of additional tax in terms of section 33(4)(c) of the Sale Tax Act, due to non-payment of sales tax by the appellant in time, was maintained.
2. The relevant facts forming background of these proceedings are that in respect of the tax period June, 2000 to July, 2001, regarding nonpayment of sale tax in accordance with section 2(44) of the Sales Tax Act, 1990 on the advances received by the appellant for the supply of POL Products to their customers, a show-cause notice dated 1st October, 2001 was issued to them. The appellant did not respond to such notice, thus further proceedings were, initiated against them, which culminated in the passing of order-in-original referred above.
3. Against the order-in-original the appellants preferred appeal under section 46 of the Act before the Customs Excise and Sales Tax Appellate Tribunal Karachi, wherein, not only they challenged the view of the Collector of Sales Tax for payment of sales tax on the advances received by the appellants during the relevant period but in addition to it they also specifically challenged the levy of additional sales tax and penalty.
4. The appellate Tribunal while passing its impugned order dated 12-6-2002 came to the conclusion that the findings recorded by the Collector of Sales Tax in its order-in-original dated 31- 12-2001, regarding non-payment of sales tax in time on the advances received by the appellant during the relevant period June, 2000 to July, 2001 in time, were correct, therefore, appellant were liable to pay sale tax accordingly. However, while passing such order the Tribunal did not touch the issue of payment of additional tax as contemplated under section 34 of the Sales Tax Act and levy of penalty equivalent to 3Q% of additional tax provided under section 33(4)(c) of the Act.
5. Ms. Danish Zuberi learned counsel for the appellant, after brief narration of relevant facts, has made two-fold submissions. Her first contention is that non-payment of sales tax during the relevant period, June, 2000 to July, 2001, by the appellant on the advances received by them was justified and in accordance with law, as in a case where neither the price of the goods was settled with the customs nor its quantity, the appellant were not liable to pay sales tax in terms of section 2(44) of the Sales Tax Act, 1990, on such advance receipts. To fortify this view she has placed reliance upon the case of Maple Leaf Cement Factory Limited v. The Federation of Pakistan and others 1999 PTD 3907. In this case it was held that mere deposit of money in anticipation of future sale could not be made the occasion for demanding the payment of sales tax. Consequently, the C.B.R. Letter containing certain instructions in this regard was declared to be without jurisdiction and without lawful authority.
6. In the same context she further made reference to the discussion made in Para-7 of the judgment in the case of D.G. Khan Cement Co. Ltd. And others v. Federation of Pakistan and others 2004 SCM R 456, which reads thus:-- "7. The Lahore High Court in judgments impugned in Civil Appeals Nos. 1262 of 1999, 1293, 1294, 1296 and 1306 of 2001 was of the view that the sales tax was payable on the incident of sale of goods as envisaged by the Sales of Goods Act under which no sale of any goods could be completed till the stage the property in goods sold had passed to the buyer and it is with reference to the said date that the sales tax was payable on the 20th of the succeeding month thereof which would be the tax period, therefore, the interpretation made by the Board of Revenue in the said letter was declared to be without lawful authority and of no legal effect and constitutional petitions accepted against which the said civil appeals by leave are directed."
7. The other contention of the learned counsel is with reference to the imposition of additional tax and penalty as envisaged under sections 34 and 33 of the Act, respectively. Dilating upon this aspect, she invited our attention to the memo. Of appeal filed before the Tribunal as well as the impugned order to show that imposition of such liabilities by the order-in-original dated 31-12-2001 was specifically challenged by the appellant before the Tribunal on various grounds enumerated in the memo. Of appeal but the Tribunal totally skipped this aspect of the case and maintained the order-in-original without recording any reason whatsoever in this regard.
8. On the other hand; Raja Muhammad Iqbal, Advocate for the respondent strongly controverted the first submission of the learned counsel for the appellant by plating reliance upon the discussion and observations of the Honourable Supreme Court contained in Paragraphs 8 and 18 of its judgment in the case of D.G. Khan Cement (Supra), which are reproduced as under:- "8. So far as Peshawar High Court is concerned, it was of the view that in view of the relevant provisions of the Act, the taxable supply shall be deemed to have been made on the date when advance payment of the consideration was received and sales tax was liable to be paid till the 20th of the succeeding month of the said payment. This was through judgments dated 18-2-1999 and 30-5-1995 against which Civil Appeals Nos.1288 of 2000 and 1866 of 1996 by leave of the Court are directed."
"18. The contention has considerable force. According to the well-established principles Of interpretation and construction of the Statutes laid down by the superior Courts, harmonious construction is to be made keeping in view the different provisions of the Statute after fully understanding the intention with which the same had been made and the object which was intended to be achieved. The intention behind the promulgation of relevant provisions of the Sales Tax Act as reproduced above is clearly manifest that the sales tax should go to the Government treasury within the tax period after the same having become due and should not be retained by the manufacturers. There is no hard and fast rule as to when and at what stage, the transaction shall be deemed to be the transaction of sale of the goods. Each case has to be decided according to the facts and circumstances of the case, in particular the practice, usage of a particular nature of business or trade. In the case in hand, the manufacturers used to receive amount of consideration in advance for the supply of cement to be made later. It is clear from the provisions of section 2(22) and (30) of the Sales Tax Act that time of supply was deemed to be the date on which advance payment was received or supply made whichever was earlier. There is no difficulty in holding that in such a case, the amount of consideration received in advance shall be deemed to be the price on that date of the proportionate quantity of cement and the sales tax should be deposited before 20th of the succeeding month in the Government treasury instead of the date of delivery of the goods at the subsequent stage. In other words, we in order to put the matter beyond any ambiguity, have no hesitation in holding that in such a situation, the date of receipt of amount of consideration in advance can well be constructed to be the date of sale for the purpose of payment of sales tax."
(Underlining has been made by us for emphasis)
9. He contended that in view of such observations of the Honourable Supreme Court of Pakistan no further room for discussion is left open for the appellant to dispute their liability towards payment of sales tax in terms of section 2(44) of the Sales Tax Act, on the advance receipts. As regards the other contention of Ms. Danish Zuberi regarding additional tax and penalty, learned counsel could not controvert the statement of facts made by her which are duly supported from the memo. Of appeal and the impugned order.
10. We have carefully considered the arguments advanced by the learned counsel for the parties and perused the material placed on record as well as the case-law cited at the bar. In our view the issue as regards payment of sales tax on advances received by the appellant during the relevant period involved in this appeal has already been authoritatively answered by the Honourable Supreme Court in the case of D.G. Khan Cement Co. Ltd. (Supra) with reference to the relevant provisions of law. Thus, the submissions of Ms. Danish Zuberi contrary to this view have no force.
Accordingly, we hold that in the facts and circumstances of the present case the appellants were liable to pay sales tax on the advances received by them during the relevant period June, 2000 to July, 2001, and the findings of the two Courts below in this regard are correct. However, we find force in the submissions of Ms. Danish Zuberi as regards her other contention relating to levy of additional tax and penalty, as the question of imposition of additional tax and penalty is to be decided on its own merits looking to the peculiar facts and circumstances of each case, keeping in view, whether the evasion or nonpayment of tax was wilful, mala fide or otherwise. Further guidance in this regard may be taken from the following cases:--
(1) Messrs Humayun Ltd. v. Pakistan and others PLD 1991 SC 963.
(2) Messrs Lone China (Pvt.) Ltd. v. Additional Secretary to the Government of Pakistan Ministry of Finance, CBR, Custom House, Karachi PTCL 1995 CL 415.
(3) Ghandhara Nissan Diesel Ltd. v. Sales Tax Department and others 2004 PTD 2771.
11. Reverting to the facts, we have noticed that in the instant case though the levy of additional tax and penalty in the order-in-original dated 31-12-2001 was specifically challenged by the appellant in their memo. Of appeal under section 46 of the Act filed before the Tribunal, and this fact was also recorded by the Tribunal in Para-3 of its judgment, but while recording its conclusion in Para-6 of the impugned judgment no discussion whatsoever was made by the Tribunal for upholding such levy of additional tax and penalty, in the order-in-original. Thus, it is evident that the Tribunal failed to follow the law laid B down by the superior Courts for this purpose.
12. Ai this stage Ms. Danish Zuberi has further argued that instead of remanding this case to the Tribunal for the limited purpose of recording its definite findings as to the justification of chargeability of additional tax and penalty or otherwise in the order-in-original, it would be more appropriate that this controversy may also be decided by this Court. However, looking to the limited scope of appeal under section 47 of the Act, which is meant only to answer any question of law arising out of an order under section 46 of the Act, we are unable to concur with such view, as an answer to the query that whether appellants have been rightly saddled with the liability of additional tax and penalty in terms of order-in-original, is not possible without detailed examination of relevant facts and circumstances of the case, for which appellate jurisdiction of High Court under section 47 of the Act will not be the proper forum to adjudicate for the first time.
13. Considering the above aspect of the case, we partly allow and dispose of this appeal in the terms that only as regards the levy of additional tax and penalty in terms of the order-in-original dated 31-12-2001 the case is remanded to the Customs, Excise and Sales Tax Tribunal Karachi for recording its finding having regard to the facts and circumstances of the case and the guidelines given by the superior Courts in the cases referred above.