' JAWAID MASOOD TAHIR BHATTI (JUDICIAL MEMBER).--1. Through this appeal, the appellant- department calls in question the Sales Tax Order-in-Appeals Nos. 612-631/2007 dated 31-12-2007 passed by the learned Collector, Collectorate of Customs, Sales Tax and Federal Excise (Appeals), Faisalabad on the following grounds:- "(1) Rule 28 of the Sales Tax Rules, 2006, narrates as under:-- "(28) Filing of refund claim.---(1) Monthly tax return filed by a claimant shall be treated as a refund claim once all the supportive documents including the requisite data in the format of software (RCPS), has been received: ' Provided that no refund claim shall be entertained if the claimant fails to furnish the claim on the prescribed software (RCPS) along with the supportive documents within sixty days of the filing of return.
' Provided further that the period of sixty days as aforesaid, in case of a commercial exporter, shall be reckoned from the date when the BCA is issued to him by the concerned bank.
(2) In cases where such supportive documents are not submitted to the officer in-charge within the time specified under sub-rule (1), the Collector of Sales Tax having jurisdiction may, on a written request from the claimant justifying the reasons for delay in submission of such documents or data on RCPS, extend the time limit for a further thirty days.
The respondent failed to file the refund claim (supporting documents within the prescribed time without any reason, therefore, the claim does not stand admissible:--
(2) The Collector (Appeals) has referred to S.R.O. 1204(1)/2007 dated 11-12-2007, in the impugned Order-in-Appeal while accepting the appeal of the respondent, which does not authorize the Collector (Appeals) to accept any appeal on grounds/ conditions mentioned therein.
(3) The said S.R.O., as amended, has crystallized the categories/ conditions in which the Collector Sales Tax has been empowered to allow extension up to 31-1-2008, narrated as under:-- ".... The Federal Board of Revenue is pleased to empower Collector of Sales Tax having jurisdiction to allow extension up to the 31st January, 2008 for furnishing refund claims pertaining to tax periods from July, 2006 to September, 2007 on the prescribed software along with the supportive documents under Rule 28 of the Sales Tax Rules, 2006, if the delay in filing of claim and documents is due to:
(a) incorrect feeding of returns by the department;
(b) non-working of computer system in Collectorate or there was some error in the refund claim preparation software (RCPS):
(c) incomplete data in Computerized Risk-based Evaluation of Sales Tax (CREST) System; or
(d) delay in getting certified documents from other departments or agencies despite the fact that the registered person applied for the same in time: ' Provided that extension shall not be allowed by Collectors to registered persons filing refund claims against revised returns and to blacklisted registered persons."
(4) The claim of the respondent did not qualify for retention for the reason:-- ' As cited above, Rule 28 of the Sales Tax Rules, 2006, read with section 10 of the Sales Tax Act, 1990, the claim of the respondent is barred by time, hence, not admissible and liable to be rejected.
(ii) That the claimant had already been provided with enough opportunity to prove his bona fide that the filing of claim (supportive document) was unavoidable and unintentional but he failed to put any evidence in his defense. Proper adjudication proceedings were completed and proper order in original was passed by the competent authority.
(iii) That the respondent did not qualify/fulfil any of the conditions mentioned in S.R.O. 1204(I)/2007 dated 11-12-2007.
' In a nutshell, it has been prayed that the order-in-appeal may kindly be rejected and the Order- in-Original may kindly be upheld.
2. Learned D.R. Has reiterated the above grounds taken by the appellant-department.
3. On the other hand, the learned A.R. Has quoted the case-law given below in order to defend the stance of the respondent-registered person:--
(i) 2001 SCMR 1806. Wherein regarding the Interpretation of statutes in respect of scope and test of Consistency of Rule it has been held that Rule should always be consistent with the Act and no Rule shall militate or render the provisions of the Act ineffective---Test of consistency is whether the provisions of the Act and that of the Rules can stand together---Main object of the rule is to implement the provisions of the Act and in case of conflict between the two, Rule must give way to the provisions of the Act---Rules, in any case, shall not be repugnant the enactment under which they are made.
(ii) 2001 PTD 2383 Wherein it has been held that Rules which are merely subordinate legislation, cannot override or prevail upon the provisions of the parent Statute and whenever there is an inconsistency between rules and statute, the later must prevail---All efforts to reconcile the inconsistency must first be made and the provisions of the parent Statute prevail only if the conflict is incapable of being resolved.
(iii) PLD 2001 SC 600 = 2001 PTD 1486 Wherein it has been held that in the event of conflict between a rule and a substantive provision of the parent Act the former is void or inapplicable to the extent of inconsistency.
' It has further been held that it is now firmly settled that in the event of conflict between a rule and a substantive provision of the parent Act the former is void or inapplicable to the extent of inconsistency.
(iv) PTCL 2003 CL 289. Wherein it has been held that the provision in the section "subject to such condition and limitation as the Board may impose" does not imply that the Board can restrict the scope of the Statute, by this clause the Board is empowered to impose conditions and limitations only for the regulation of the Statute.
' The provision in the section "subject to such condition and limitation as the Board may impose" does not imply that the Board can restrict the scope of the statute. We are of the view that by this clause, the Board is empowered to impose conditions and limitations only for the regulation of the statute. We are not inclined to accept the arguments that since the Rules issued concern themselves only with the return of goods, the other 4 situations mentioned in the statute would not form the basis of issuance of debit and credit note. The omission by the executive authority would not oust the statute.
' On the contrary, the other four situations mentioned in the Section would be operative without any condition and limitation, as no Rule have been framed by the Board in this regard. In this, we are strengthened by the judgment of Supreme Court of Pakistan in case of M.U.A. Khan v. Rana M Sultan and others as reported as [PLD 1974 SC 228]. In the above-mentioned judgment, their lordship have held as follows: "It is universally recognized that as regulatory statute have to deal with a verity of situations and subjects, it is not possible for the Legislature itself to make detailed regulations concerning them, and therefore, the Legislature delegates its power to specified of designated authorities to make such detailed regulations, consistent with the statute for carrying out the purposes of the parent legislation. The power so conferred is generally in the nature of an enabling provision, intended to further the objection of the statute, and not to obstruct and stultify the same. As a consequence, the failure or omission of the designated authority to frame the necessary rules and regulations, in exercise of the power conferred on it by the Legislature cannot be construed as having the effect of, rendering the statute nugatory and unworkable. Such an eventuality could arise only if the Legislature indicates in intention to this effect in clear and unmistaken terms."
(v) PLD 1998 SC 64. It has been observed that the latest judicial trend is to deprecate and to discourage withholding of a citizen's money by a public functionary on the plea of limitation or on any other technical plea if it was not legally payable by him.
(vi) 2008 PTD (Trib.) 370. Wherein it has been held that the claim of refund cannot be refused on account of limitation. Referring the three cases it has been held though the applications were filed beyond the prescribed time limit yet the Courts had directed issuance of the refund. Therefore, taking guidance from the same analogy it has been observed that the authorities below were not justified in rejecting the application of refund on account of limitation and was directed that the genuine refund, due to the taxpayer should be allowed.
(vii) 2010 PTD (Trib.) 449. In this case the learned counsel for the appellant stated that only issue involved is filing of supporting documents late by 38 days for the tax period July, 2006 and cited the judgment of the Honourable Supreme Court of Pakistan [PLD 1998 SC 64] wherein, it has been decided to discourage withholding of citizen's money by a public functionary on the plea of limitation or on any other technical plea if it was not legally payable by him. He also referred to the judgments of this Tribunal whereby the Tribunal has allowed refund by accepting the appeal based on the above judgment. The departmental representative accepted the position and also the arguments of the learned counsel that in similar cases the refund has been allowed in many cases by the department and by the Collector (Appeals), therefore the plea of the appellant was accepted and the impugned orders were set aside.
(viii)[2010 PTD (Trib.) 768]. In this case it has been held that genuine refund claim could not be refused on the ground that application was not filed within prescribed time---When a refund claim was verifiable and genuineness of overpayment of tax established after verification but it was refused mere on technicalities it was held to be unfair.
4. As a sequel of the above case-law quoted by the learned A.R. For the respondent-registered person, I find that the impugned issues in view of the aforesaid discussion get diluted and need not to be commented upon. The departmental appeal having no substance is, therefore, dismissed.