' CH. MUNIR SADIQ (JUDICIAL MEMBER).---This order shall dispose of the titled appeal filed by Assistant Collector, Collectorate of Sales Tax and Federal Excise, Faisalabad against Sales Tax Order-in-Original No,46 of 2002 dated 9-10-2002 passed by the Additional Collector, Sales Tax and Central Excise (Adjudication), Faisalabad
2. Brief facts giving rise to the present appeal are that show-cause notice vide C.No,ADC/Adj/23/2002/S.Tex/25066, dated 11-6-2002 was issued by the Additional Collector (Adjudication), Faisalabad for recovery of Rs,2,839,720 wherein, inter alia, it was mentioned that in different tax periods as per audit observations the production declared by the registered person was lower than the average production of the registered person meaning thereby that the registered person has suppressed the production during different tax periods. He was asked to show cause why the production should not be calculated on the basis of comparison of gas units consumed. The registered person filed the reply where after the Additional Collector (Adjudication) held that demand raised in above mentioned allegation was invalid. Hence this appeal.
3. Learned DR has submitted that the learned Additional Collector (Adjudication) has decided the case without considering the observations made in the audit report. He further stated that inadmissible benefits passed on to the registered person are in violation of the provisions of the Sales Tax Act, 1990. Learned AR for the registered person, on the other hand, submitted that the titled appeal is not competent and maintainable under the law being filed by the Assistant Collector of Sales Tax who was not authorized under section 46(1) to file the appeal. He also argued that in absence of any charge sheet the show-cause notice was illegal. He further submitted that the case relied by the department in the memo of appeal has been' set at naught by the Appellate Tribunal Inland Revenue in S.T.A. No,134/LB/2009. He argued that consumption of sui gas shown by Auditors was without any evidence and no such sui gas consumption was made by the registered person. The registered person was wrongly burdened by the department and the relief was allowed by the Additional Collector (Adjudication) keeping in view the facts and circumstances of the case which have been duly discussed in the impugned order.
4. Arguments heard and record perused.
5. Learned AR has at the very outset questioned the maintainability A of the appeal on the ground that the Assistant Collector Sales Tax was not authorized under section 46(1) to file the appeal. It would be appropriate to reproduce the provisions of section 46(1) of the Sales Tax Act. 1990 as they were at the time of filing of appeal.
Section 46--Appeal to Appellate Tribunal;---Any person including the Sales Tax Department, aggrieved by-
(a) any decision or order passed by a Collector or Additional Collector of Sales Tax under sections 11, 36 or 45;
(b) any order passed by the Collector of Sales Tax (Appeals) under section 45B; and
(c) any order passed by the Board or the Collector of Sales Tax under section 45A, may, within sixty days of the receipt of such decision or order, prefer appeal to the appellate Tribunal.
In section 46 the word Sales Tax Department has been used and Assistant Collector Sales Tax is not Sales Tax Department because the individual officers cannot be called a department. An officer serving in a Department is not Department unless he has a representative capacity. The department is a unit or a branch of Government either Federal or Provincial under political control of Minister or Secretary of the State or the Chairman of the Board thus the Sales Tax Department in the present case was the Revenue Division or the Central Board of Revenue and the Assistant Collector had no power under section 46(1) of the Act to prefer an appeal before the Appellate Tribunal against any order passed by the Additional Collector (Adjudication). We are fortified, in our above view, by a reported case cited as PLD 1986 Kar. 130 titled "Muhammad Rashid Bhatti v. KDA through its Secretary" wherein it was observed as under:-- "The question whether a Government officer is a Department of the Government is a debatable point. The term 'Department' as mentioned in Chambers Twentieth Century dictionary means; `A part, a special or allotted function, sphere of activity, duty or competence, a section of an administration, university, office or organization.
' Black's Law dictionary has defined as follows:-- "Department.---one of the territorial divisions of country. The term is chiefly used in this sense in France, where the division of the country into Departments is somewhat analogous, both territorially and for governmental purposes, to the division of an American state in to countries. One of the major administrative divisions of the executive branch of the Government usually headed by an Officer of cabinet rank; e.g. Department of State. Generally, a branch of division of governmental administration. Also, a division of a business, or of something comparable thereto."
' A Department as used in section 56(d) connotes an establishment, division, unit, faculty or branch of administration under the control of the Government at higher level completely separate from its officers. The officers cannot be called a Department of the Government. They are merely functionaries appointed to exercise the powers as provided under the law, rules or regulations with a view to carry out the policy, object and priorities as laid down by the Department. In our polity one can find Departments like Education Department, Law Department, Science and Technology Department, Health Department, Home Department and General Administration Department etc. In this regarded reference can be made to "Ramchand v. District Magistrate, Allahabad" and others where similar question came under consideration and after an exhaustive discussion and citing several authorities it was observed as follows:-- "It follows from what I have said above that Department is a particular activity or a branch of Government under the political charge or control of a Minister or a Minister of State responsible to the legislature.... It must be borne in mind that, the words used in section 56 are 'Department' of the Union Government or State Government. Surely an Officer serving in a Department is not the Department and cannot have a representative capacity. To hold otherwise would be to hold that an excise inspector, sub-inspector of police, a Kanungo or a Patwari is a Department. Any such conclusion would be inconsistent with the whole theory on which responsible Government i,e, a Government deriving its authority from the legislature and removable by it rests. The inference to be drawn from all this discussion is that a Department is a unit or branch of Government, either Union or State, under the political control of a Minister or Secretary of State or president of the Board. Individual Officers serving under a Department do not constitute a Department. The Department has an entity distinct and separate from the Officers serving under it. I am clear in my mind, therefore, that there is no force whatsoever in the argument that the District Magistrate is a Department and, therefore, immune from the power of issuing injunctions which Courts enjoy....
Form the observation the concept of Department can be clearly understood. In the present respondent No, 2 is the Assistant Commissioner who is also designated as Sub-Divisional Magistrate deriving his powers from the Code of Criminal Procedure and other legislation under which he can take action in public interest, but such actions or powers conferred on him do not make him a Department of the Government."
6. Honourable Custom, Excise and Sales Tax Appellate Tribunal has observed as under in a case cited as 2007 PTD (Trib.) 2494:-- ' The word "Sales Tax Department" has not been defined in the Sales Tax Act, 1990. Under the General parlance, a department is a part of a large organization with a specific responsibility. The Sales Tax department thus is a part of the Central Board of Revenue now F.B.R. Dealing with the matters relating to the Sales Tax, however, department is headed by its head. According to the Secretariat Instruction issued in pursuance of Rule 5(15) of the Rules of Business, 1973 known as the Secretariat Instruction 1994, the head of department has been defined vide instructions (iii) which means " the officer who has been declared as such by government under the Fundamental and Supplementary Rules". According to the Supplementary Rules made by the President under the Fundamental Rules that term head of department as defined, i,e, Supplementary Rule 2(10) means any authority which the Governor General may by order declare to be head of department for the purpose of these rules. The President of Pakistan has issued a list of officers under Supplementary Rule 2(10) declaring them to be the head of departments for the purpose of Supplementary Rules.
From the perusal of the aforesaid list, the Collector has been designated as the head of the (1) department of the Customs and Central Excise etc., therefore, the same analogy will be applicable to the provision of Sales Tax Act, 1990 and the Collector of the Sales tax can only be considered as a head of Department.
7. In Sales Tax Appeal No,L-686/04, the learned Division Bench of the Appellate Tribunal at Lahore has held that "the appeal filed by the Deputy Collector cannot be treated as appeal filed by the department. The officers cannot be called department of the Government. They are merely functionaries appointed to exercise the powers as provided under the law, rules or regulations with a view to carry out the policy object and priorities as laid down by the department. An officer serving in a department is not a Department and cannot have a representative capacity.
Furthermore, a department is unit or branch of government, either federal or provincial under the political control of Minister or Secretary of the State or the Chairman of the Board". Consequently, it was held that a Deputy Collector cannot be treated as a department and the appeal filed by him was not maintainable within the frame work of section 46 of the Sales Tax Act, 1990.
8. Learned DR has also contended that section 46(1) allows aggrieved person including the Sales Tax Department to file an appeal and in the present case Assistant Collector Sales Tax was an aggrieved person, therefore, even if Sales Tax Department has not filed an appeal the Assistant Collector Sales Tax was competent to file the instant appeal. We are of the view that the expression 'aggrieved person' and `the Sales Tax Department' used in section 46(1) are significant. The expression 'aggrieved person' denotes a person who has got a legal grievance i,e, a person is wrongfully deprived of anything to which he is legally entitled and not merely a person who suffer some sort of disappointment as in the instant case.
' The definition of 'aggrieved person' given in the Black's Law Dictionary, Fifth Edition page 60 is as under:- "one whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by a decree or judgment. One whose right of property may be established or divested. The word 'aggrieved' refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of a burden or obligation."
In the light of above definition, the Assistant Collector Sales Tax cannot be termed to be an 'aggrieved party'. The Assistant Collector Sales Tax might have been disappointed for the reason that a proceeding initiated on his initiative has failed; but he has not suffered any personal injury.
Furthermore, in terms of section 46(1) as reproduced above, the expression 'aggrieved party' and 'the Sales Tax Department' have been used and if term 'aggrieved party' is preferable to any Officer of Sales Tax then the expression 'the Sales Tax Department' would be redundant. It is golden principle of interpretation that the redundancy cannot be attributed to the legislation. The right of appeal is not an inherent right but a statutory right. The legislation has confined the right of appeal on the Sales Tax Department and has not left the right of filing appeal at the discretion of the Assistant Collector of Sales Tax. Therefore, in our view the contention of learned DR, that Assistant Collector of Sales Tax falls within the definition of aggrieved person and was competent to file an appeal is misconceived. While dealing a similar legal proposition honourable Supreme Court of Pakistan has held in the case of "Director, Directorate General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Ltd., and others" cited as 2006 SCM R 129 that each and every word appearing in a section is to be given effect and no word is to be rendered as redundant or surplus. It was also held that when section 196 of the Customs Act requires filing of an appeal by the Collector then it can be filed only by the Collector and none else. The appeals filed by the Director were deemed to be absolutely illegal, incompetent and not maintainable. It was observed that even the appeals purported to have been filed by the Collector, as the nomenclature of the petitioner appears as Collector of Customs, but not signed and verified by him and instead were signed or verified either by Deputy Collector or Assistant Collector of Customs would also be deemed not to, have been filed in accordance with law in view of the pronouncement made by the honourable Supreme Court of Pakistan in the case of Haji Abdullah Jan and others v. The State 2003 SCM R 1063 and State through Advocate General Sindh v. Hanif Ahmad and others (1994 SCM R 749). It was further held that the contention of the Revenue, that the appeals in which the nomenclature of the petitioner has been mentioned as Collector of Customs could not be deemed to have been filed illegally or contrary to law on the ground of not having been signed and verified by the G Collector and further that it was merely an irregularity which could be rectified by allowing the Collector to sign the appeals, does not appear to carry weight. It was also reiterated that when the doing of a thing is made lawful in a particular manner then doing of that thing in conflict with the manner prescribed will be unlawful as per maxim "Expressum facit cessare taciturn. " The case of Messrs Airport Sports Services v. Airport Manager, Quaid-e-Azam International Airport Karachi and others cited as 1998 SCM R 2268 was also quoted, wherein it had been held that signing or verification of appeal by a wrong or unauthorized person would be detrimental to the petitioner.
Ultimately it was held as under:-- "The appeals were not filed in accordance with law and there was contravention and violation of the mandatory provisions of law. Thus in view of the observations made above such appeals would be deemed to be nullities having no legal existence."
9. It was argued on behalf of the appellant that the appearance of the Sales Tax Officer has been prescribed under section 31 of the Sales Tax Act, 1990. Similarly, delegation of powers has been granted under section 32 of the Sales Tax Act, 1990. Subsection (2) of section 32 of the Sales Tax Act, 1990 provides that "unless the Board in any case otherwise directs, the Collector may authorize any officer subordinate to him to exercise within any specified area, any of the powers of the Collector or of. Any other officer of Sales Tax under this Act." But no authorization or general delegation of powers giving the specific authorization to file the appeals has been given to the Assistant Collector in the absence of which, it shall be safe to presume that the Assistant Collector has not been delegated the powers of filing the appeals before the Tribunal. On 30-3-2010, in order to satisfy ourselves, we asked the learned DR to produce the record showing general delegation of power notification or authorization of Assistant Collector of Sales Tax to file the present appeal but he failed to provide the same despite availing three opportunities. This clearly shows that Assistant Collector Sales Tax was neither delegated the power nor was authorized to file the appeal on behalf of the Sales Tax Department.
10. For the aforesaid reasons and the case-law cited above, we are of the considered view that the Assistant Collector at the relevant time was not competent to file the appeal on behalf of the Sales Tax Department. Therefore, the appeal is held to be filed by unauthorized person and not maintainable within the provisions of section 46 of the Sales Tax Act, 1990 as it stood at the relevant time.