' M.A. JAVED SHAHEEN (JUDICIAL MEMBER).---The registered person has filed the titled appeal under section 46 of the Sales Tax Act, 1990 against Order-in-Appeal No,274 of 2007 dated 10-7-2007 passed by the learned Collector of Customs, Excise and Sales Tax (Appeals), Faisalabad.
2. Briefly stated the facts of the case are that the appellant-registered person is a manufacturer- cum-exporter engaged in making of textile goods claimed refund of input tax pertaining to February, 2005 involving an amount of Rs,95,720 incurred in connection with zero-rated supplies.
The registered person was however served upon with a show-cause notice dated 21-6-2006 that as to why refund claimed may not be rejected on the objections of 'invoice summary not submitted and no sales to claimant shown in summary' under section 11(2) read with Rule 8 of Sales Tax Rules, 2002 (Refund Rules) notified vide S.R.O 575(1)/2002 dated 31-8-2002.
3. During adjudication proceedings, registered person contested the charges levelled against him but the learned Assistant Collector, Faisalabad rejected the refund claim being not satisfied with the documents submitted before him and passed Sales Tax Order-in-Original No,633 of 2006 dated 30-12-2006 on the ground of 'abnormal tax profile' . The registered person feeling dissatisfied with the treatment given by the adjudicating authority assailed the said order before Collector (Appeals), who also upheld the findings of Assistant Collector (Refund), hence filed the titled appeal before this Tribunal, praying for setting aside the orders of authorities below.
4. With regard to office objection of this Tribunal that the instant appeal has been filed late as the order-in-appeal was passed on 30-8-2007 whereas appellant filed the titled appeal before this Court on 29-4-2008 which is time barred by 182 days as per provisions of section 46 of the Sales Tax Act, 1990. The learned AR argued that since the order of learned Collector (Appeals), Faisalabad is illegal, void and defective therefore, no time limit would run against it.
5. I have heard the learned counsel for the appellant/company and have gone through the record of the case, as well as the case law cited before me.
6. Now, I would like to dilate upon the issue of time limitation prescribed for tiling of appeal under section 46 of the Sales Tax Act, 1990 as the instant appeal has been tiled after 182 days before this Tribunal. The main plea of the learned AR is that since the order of D Collector (Appeals) is illegal, void and defective because the same has been passed on the ground which was not framed in the show-cause notice therefore no time limitation would run against it. I have examined the provisions of section 46 of the Sales Tax Act, 1990 which provide for appeal to the Appellate Tribunal within 60 days of the date of communication of the order and jurisdiction of the Tribunal under subsection (2) of section 46 of the Act which allows a discretion to admit any appeal preferred after the period of limitation. It is an admitted fact that the learned Collector (Appeals) has passed the impugned judgment on that issue which was never confronted in the show-cause notice. I am also in respectful agreement with the principle laid down by the honourable Supreme Court of Pakistan in a judgment reported as (1996 SCMR 856) wherein it has been laid down as under:-- "Void order and erroneous order---Limitation for setting aside---Bar of limitation can be ignored in respect of voids but not in respect of erroneous orders---Question of limitation would not arise in respect of judgments which were nullity in law, void or ultra vires---Where order was without jurisdiction and void, it need not be formally set aside."
7. The dictum laid down by the honourable Supreme Court of Pakistan in judgments cited as (2007 SCMR 729) and (2007 SCMR 262) is also attracted in the instant case that:-- "Void and illegal order---Limitation would not run against such orders."
8. Since impugned decision of learned Collector (Appeals) clearly contravening settled principles of justice and spirit of law therefore, the same is illegal and devoid of lawful authority. Hence, I do not deem it fair to reject the appeal because of a procedural or technical lapse as this has already been settled by the honourable apex Court that the cases should be decided on merits instead of on technic2i grounds. Thus, in the peculiar circumstances, bar of limitation would not apply and delay in filing of appeal for the above reasons is condonable. I am inclined to exercise discretion in favour of appellant by granting request concerning condonation of delay.
9. Adverting to the merits of the case, learned AR, appearing .On behalf of the registered person vehemently contented that the appellant was confronted with the charges of "invoice summary not submitted and no sales to claimant shown in summary" in the impugned show-cause notice whereas orders of learned adjudicating authority as well as first appellate authority provide rejection of refund on the charge of "abnormal tax profile" which is not only illegal but also beyond the scope of show-cause notice. In support of his contention, the learned AR relied upon the reported judgments of the superior Courts.
10. Inconspicuously, above narration of facts shows that the allegations against the registered person were invoice summary not submitted and no sales to claimant shown in summary which primarily levelled in the show-cause notice while at the time of passing the impugned orders, the learned Assistant Collector as well as Collector (Appeals) deviated from the aforesaid allegations and rejected the registered-person's refund claim on the ground of abnormal tax profile which is not only illegal but also beyond the scope, stance and contents of the show-cause notice. It is well- settled principle of law that a charge which was not framed in show-cause notice cannot be adjudged through an adjudication order.
11. The impugned orders are not sustainable as charge or controversy of abnormal tax profile was not part of the show-cause notice. The learned adjudicating authority as well as first appellate authority neither ascertained the facts nor made any inquiry or issued a show-cause notice in order to adjudicate an issue which was not before them as a part of the show-cause notice. It is a well-established principle of law that nobody should be a judge of his own cause (Nemo debet esse index in causa propria sua), thus in absence of any notice regarding a disputed issue, the authorities below were not competent to pass an order. The said principle is applicable to Courts, Tribunals, Authorities having jurisdiction to determine judicially, the rights of citizens.
12. As is evident that the Assistant Collector and Collector (Appeals) have decided an issue which was not sub judice before them as part of the statement of allegations conveyed to the appellant and by giving a decision on the same they acted beyond their jurisdiction to pass a finding on such issue.
13. In somewhat similar situation, the honourable Supreme Court of Pakistan in case of "The Collector Central Excise and Land Customs and others v. Rahm Din" reported as (1987 SCMR 1840) has laid down as under:--
14. "However, we are of the opinion that it is not necessary to determine this question of law in the facts of the present case as this petition can be disposed of on the short ground that the order of adjudication being ultimately based on a ground which was not mentioned in the show-cause notice, the order was palpably illegal and void on the face of it. We have carefully examined the show-cause notice and find no reference whatsoever or necessary facts relating to the ground that the alleged contraband goods were imported into Pakistan from an unauthorized route. In view of this palpable legal infirmity, we do not consider it necessary to examine the other contentions raised by the learned counsel."
(Underlining ours)
' 14 In another case, like the present one, the Customs, Excise and Sales Tax Appellate Tribunal, Lahore in Sales Tax Appeal No,43/LB of 2008 reported as (2010 PTD (Trib) 451) has held that:-- "I find that the charge of non-filer against invoices of Messrs D.S. International (Pvt.) Ltd., was levelled in the impugned show-cause notice however, impugned adjudication order provides for rejection of refund on the charge of abnormal tax profile hence; rejection of refund is beyond scope, stance and contents of impugned show-cause notice. No such charge as adjudged in impugned adjudication order was primarily levelled in show-cause notice which renders it null and void in eye of law. It is trite law that a charge which was not framed in show-cause notice cannot be adjudged through an adjudication order."
15. Keeping in view the above discussion and the case law cited ,supra, the impugned orders in this case thus suffer from procedural and legal impropriety, as a cause for which no show-cause notice was given by the department was adjudicated by them in flagrant violation of the existing provisions of law. Having said that it is held that authorities below had no jurisdiction to decide an issue which was not sub judice before them. I am of the considered view that both the orders of authorities below are illegal and without lawful authority hence, set aside and appeal filed by the registered person is accepted.
16. Both miscellaneous application and main appeal filed by the registered person are disposed of as above.