' SYED NADEEM SAQLAIN (JUDICIAL MEMBER).---Titled appeal has been filed at the instance of the registered person/appellant calling in question the impugned order dated 30-4-2008, passed by the Collector, Collectorate of Customs, Sales Tax and Federal Excise (Appeals), Faisalabad. A number of objections have been raised through grounds of appeal however, at the time of hearing, a preliminary legal objection has been raised by the counsel of the appellant. It was contended that the learned Assistant Collector while rejecting the claim of refund transgressed his jurisdiction which is unlawful and unjustified.
2. Briefly stated the facts of the case are that during the process of refund claim, Assistant Collector (Refund Streams) was informed that an amount of Rs,2,028,407 was deferred due to certain discrepancies mentioned in the impugned order as well as in the Order-in-Original. Based upon the alleged irregularities/omissions, the appellant was charged with violation of sections 4, 7, 8(1), 10, 26 of the Sales Tax Act, 1990 (hereinafter called the Act) read with section 2(14) and Refund Rules. Show-cause notice was issued on 17-2-2007 and hearing in the present case was fixed time and again and finally the case was decided on 18-5-2007 whereby refund claim of the registered person was rejected since the appellant had failed to prove the genuineness of their claim/ reported shipping bills in order to settle the STARR objections. The appellant also failed at the first appellate level, hence the instant appeal before the Tribunal.
3. Both the parties have been heard and relevant orders perused. The learned A.R. Of the assesse contended that the learned adjudicating officer (Assistant Collector) could, at the relevant time, only adjudicate upon the cases involving amount of tax or amount erroneously refunded not exceeding Rs,1(m). It was argued that the Assistant Collector has transgressed his jurisdiction which is unlawful. In this regard he referred to section 45 of the Act. It was further argued that the learned Assistant Collector did have the jurisdiction under section 45 of the Act to adjudicate upon the cases under sections 11(2) and 36 of the Act involving amount of Rs, 1(m). Since in the present case amount involved is more than 1 million, hence assumption of jurisdiction by the learned Assistant Collector is corum non judice, therefore, all the subsequent proceedings conducted thereafter cannot be considered as having been done in pursuance of law. Hence the case is set aside and directions are made to allow the refund claimed by the registered person. Reference in this regard was made to the reported and unreported judgments of the apex court as well as the Tribunal cited as 2006 SCM R 470, 2008 SCM R 240, S.T.A. No,94/LB of 2008 and S.T.A. No,105/LB of 2008. The relevant extracts from the above judgments are as under:-- 2006 SCM R 470 "Exercise of jurisdiction---if a mandatory condition in exercise of jurisdiction by court is not fulfilled then court has no jurisdiction to assume the jurisdiction."
2008 SCM R 240 "If a mandatory condition for the exercise of a jurisdiction before the Court, Tribunal or Authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and is without jurisdiction.
S.T.A. No,94/LB of 2008 = 2010 PTD (Trib.) 1636 "Perusal of section 45 of the Act reveals that the learned adjudicating officer (Assistant Collector), could, at the relevant time, only adjudicate upon the cases involving amount of tax or the amount erroneously refunded not exceeding Rs,1(m). The amount involved in both the cases, Order-in- Original No,39 of 2006 is Rs,89,17,134, while in Order-in-Original No,40 of 2006 it is Rs,81,95,633 which definitely exceeded Rs,1(m). We are of the firm opinion that the learned adjudicating officer has transgressed his jurisdiction which is unlawful."
4. Since we have decided the case purely on the legal ground, hence the remaining grounds need not be discussed.