' EJAZ AFZAL KHAN, J.---Collector Regional Tax Office has filed this reference to seek answers to the following questions:--
(a) Whether a DTRE approved person can claim refund or input tax adjustment of sales tax paid on packing material and chemical used in DTRE Scheme?
(b) Whether Rule-307-B of newly DTRE Rules, 2005 issued vide Notification S.R.O. 563(1)/2005 dated 16-6-2005 will be applicable to the refund claim of the respondent (for the period December, 2003), or Rule 302-A of the Customs Rules, 2001 (DTRE Rules 2001) issued vide notification S.R.O.
450(1)/2001 dated 18-6-2001?
(c) Whether with the approval of Collector or Additional Collector, an Assistant Collector can be considered an aggrieved person and can file an appeal on behalf of them or not?
2. Learned counsel appearing on behalf of the petitioner contended that DTRE user cannot claim refund or input tax adjustment of sales tax paid on packing material and chemical used in DTRE Scheme except Electricity and Gas to the extent of their proportionate consumption in the production of exported goods. The learned counsel next contended that when the case of the respondent relating to the period of December, 2003 was covered by Rule 302-A of the Customs Rules of 2001 (DTRE Rules, 2001) issued vide notification S.R.O. No.450(I)/2001 dated 18-6-2001, Rule 307-B of newly DTRE Rules, 2005 issued vide notification S.R.O. 563/(1)/2005 dated 16-6-2005 would not be applicable, therefore they cannot claim refund or input adjustment of sales tax paid on packing material and chemical used in DTRE Scheme. The learned counsel next contended that the appeal before the learned appellate Tribunal could not be held to be incompetent by referring to the judgment rendered in the case of Director, Directorate-General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Limited and others (2006 SCM R 129), as it being related to section 196 of the Customs Act deals with the filing of appeal before the High Court only. The learned counsel by concluding his arguments submitted that where the impugned judgment has been based on misunderstanding of law, it is liable to be set aside.
3. As against that, the learned counsel appearing on behalf of the respondent contended that the case of the respondent being related to the period of 2003 is clearly and squarely covered by Rule 302-A of the Customs Rules, 2001 (DTRE Rules, 2001) issued vide notification S.R.O. 450(I) of 2001 dated 18-6-2001 but these Rules being in conflict with the parent Statute cannot override the latter.
The learned counsel next contended that the strength of the aforesaid Rules cannot be over emphasized when it stands diluted by the C.B.R., vide its letter No.3(15) STP/99 Val-I dated 11-7- 2002. The learned counsel by referring to the case of Central Board of Revenue Islamabad v. Sheikh Spinning Mills Ltd. Lahore and others (1999 SCMR 44) contended that neither Board of Revenue nor even the Federal Government can control or curtail judicial adjudication powers vested in the forums provided under the relevant law by giving a particular interpretation to a particular provision thereof or by issuing a notification S.R.O. For the purpose.
4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
5. A perusal of the Rule 307-B promulgated vide notification S.R.O. No.563/1/2005 dated 16-6-2005 would reveal that it has nothing to do with the case of the respondent, which is relating to the period of December 2003. Its reference in the judgment of the Collector is thus uncalled for. The case of the respondent would clearly and squarely fall within the ambit of Rules 302-A of the Customs Rules, 2001 (DTRE Rules, 2001) promulgated vide notification S.R.O. No.450/1/2001 dated 18- 6-2001. Now the question crops up whether it prohibits the refund or input adjustment of sales tax paid on packing material and chemical used in DTRE Scheme. Before we answer the question, it is worthwhile to reproduce the relevant rule, which reads as under:-- "302A. Refund or adjustment of sales tax. Refund or input adjustment of sales tax paid on electricity and gas shall be allowed to the DTRE approved exporter to the extent of proportionate consumption thereof in the production of exported goods.
6. A look at the above quoted rule would reveal that it deals with the refund or input adjustment of sales tax paid on electricity and gas. Since it is not prefaced by a non obstante clause, it cannot be taken to override any of the provisions of sales tax or any other relevant law providing for refund or input adjustment. Refund or input adjustment of sales tax paid or packing material and chemical used in DTRE Scheme cannot, thus, be refused by referring to above quoted rule. Therefore, we have no hesitation to hold that a DTRE approved person can claim refund or input adjustment of sales tax paid on the said material. Once we hold that a DTRE approved person can claim the refund or input adjustment under the above quoted rule, reference to rule 307B of DTRE Rules, 2005 being irrelevant and outside the scope of this case would become redundant and even superfluous.
Reference to the case of Central Board of Revenue Islamabad v. Sheikh Spinning Mills Ltd. Lahore and others (supra) and letter No.3 (15). STP/99 Val-I dated 11-7-2002 would also be hardly necessary.
7. Now the question arises whether with the approval of Collector or Additional Collector, an Assistant Collector can be considered as an aggrieved person and can file appeal on behalf of them? If this question refers to an appeal before the appellate Tribunal, the answer to the question would be in the affirmative because under section 194A of the Customs Act, 1969, and officer of Customs, aggrieved by an order passed by an officer of Customs as an Adjudicating Authority under section 179 of the Act, can file appeal before the appellate Tribunal. B Similarly an officer of Customs aggrieved by an order passed by the Collector (Appeals) under section 193 or an order passed by the Board or Collector under section 195 of the Act, can file an appeal before the appellate Tribunal, if authorized by the Board in the official Gazette. But if the question relates to filing of an appeal in this Court under section 196 of the Customs Act, the answer would be in the negative. It is by now settled that so long as an appeal is not filed and verified by Collector, it cannot be held to be competent. The case of Director, Directorate-General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt) Ltd and others (supra), may well be referred in this behalf.
8. With the answers given above, this reference stands disposed of.