In the course of special audit for the period 1998-1999 and 1999-2000, it was found that the respondent has not paid sales tax with regard to supply of sand to Ghazi Brotha Dam. A show- cause notice for sales tax liability for an amount of Rs. 79,60,491/- was issued on 21.3.2001. Order- in-Original was passed ex-parte against the respondent, who was directed to pay the amount of sales tax and the penalty at 3%. The respondents assailed the order of Sales Tax Authority before Customs, Central Excise and Sales Tax Appellate Tribunal on the ground that the petitioner has carried the task of transportation of sand to Ghazi Brotha Dam and the transaction does not involve sale of sand, therefore, the respondent is not involved in taxable activity. It was also urged that show-cause notice was time-barred, the Adjudicating Officer has no authority and the order impugned- was passed without hearing the respondent. Learned Tribunal observed in its order that there is no evidence to show that the respondent has charged price of sand. He has been, paid only transportation charges. Learned Tribunal found that order is non-speaking and no document has been referred in the impugned order. The appellant, assailed the order of learned Tribunal in the instant appeal.
2. Learned counsel for the respondent has raised the objection of maintainability of Sales Tax Appeal on the ground that appeal has been filed by Collectorate of Sales Tax through its Law Officer while an appeal u/s. 47 of the Sales Tax Act, 1990 can be filed only by the Collector, within the contemplation of Section 196 of the Customs Act, 1969. It was also argued that appeal of the appellant is. Barred by limitation. Learned counsel for the respondent has submitted that the .
Appeal had been filed by the Collectorate of Customs and Law Officer was duly authorized to file the appeal. He has then submitted that the office has been shifted to Islamabad and in the course of shifting, the original file is not traceable. He' has shown inability to place on the record letter of authority.
3. Heard learned counsel for the parties and record perused.
4. Sales Tax Appeal within the contemplation of Section 47, lie to this Court if it is filed within 60 days by an aggrieved person or the Collector, according to un-amended Section 47, before its substitution with Act, 2005. Admittedly, instant appeal has been filed by Collectorate- of Sales Tax and not by Collector. Secondly, it has been filed by Law Officer who is not Officer of the Sales Tax as envisages in Section 30 of the Sales Tax Act, 1990. An identical question came up for consideration in the case of "Directorate General of Intelligence and -Investigation and others v. M/s. Al-Faiz Industries (Pvt.) Limited and others" (PTCL 2008 C.L. 337) and it was held as under:- ".......... ...This argument is also without any substance for the purpose of deciding the issue , involved in these petitions. Irrespective of the fact whether the Director performs some functions and discharges duties of the Collector, the fact remains that he would not become or would not be deemed to be Collector even if he exercised certain powers of Collector of Customs. Even, otherwise the above grounds are not relevant to the issue or dispute arising in these petitions. It is pertinent to note that Section 196 has specifically authorized the Collector to file appeals in the High Court on behalf of the Customs Department. It is well-settled and established principle of law that when the Legislature requires the doing of a thing in a particular manner then it is to be done in that manner and all other manners or modes of doing or performing that thing are barred."
It was further held:--- Application of the pronouncement made by this Court in the cited case can be extended with advantage to the case in hand by holding that Section 196 of the Act specified a particular officer to initiate legal proceedings on behalf of the Customs Department, therefore, the demands of Section 196 of the Act are to be accurately and strictly obeyed. It is not the job of this Court to question the propriety, motive, prudence or object of the Legislature in' conferring the power or right to file an appeal under Section 196 of the Act on a particular or specified officer. If any authority is required in support of the above proposition, the same is available from the judgment of this Court in the case of "The Punjab Province V. Malik Khizar Hayat Khan Tiwana" (PLD 195 8 Federal Court 200)........................................ "
5. The case of the appellant is identical to the case referred by learned counsel for the respondent.
The appeal has not been filed by the Collector, the same is not competent and is accordingly dismissed.