' This appeal has been filed by the registered person against the order of Collector (Appeals)
Customs, Sales Tax and Federal Excise, Multan dated 9-4-2008.
2. Facts of the case, in brief, are that the appellant filed claim for refund of Rs,236,755 for the period 09.2006 to 05.2007. The said refund accrued to the appellant on account of excess input tax paid along with the electricity bills. As per refund Rules, 2006 issued vide S.R.O. 555(1)12006 dated 5-6- 2006 the claimant of refund was required to furnish the claim on the prescribed software (RPS) along with the supportive documents within sixty days of filing of the return. From the perusal of the record it transpires that the registered person filed application for issuance of refund on 30-6-2007 whereas the relevant sales tax return along with challan of payment was filed on 3-7-2007. As per refund rules issued vide S.R.O. Referred to above the registered person was required to furnish data on the prescribed software (RCPS) along with the supportive documents within sixty days of filing of return. The data on the software was however, filed as late as 20-9-2007 i,e, eighteen days after the expiry of time limit prescribed in the Refund Rules, 2006. The Deputy Collector (Refund) Sales Tax Multan, therefore, rejected the claim of refund vide order-in-original dated 27-11-2007 holding it to be barred by time. Being aggrieved the A registered person filed appeal before the Collector (Appeals) who vide his order dated 9-4-2008 which was dispatched to the appellant under C.
No,52/AAP/MTN/St/07-850 dated 19-5-2008 rejected the appeal and upheld the order of the Deputy Collector (Refund). The operative part of the order of the. Collector (Appeals) is reproduced hereunder:- "These contentions have been considered. It is observed that the Federal Government vide S.R.O.
No,555(1)/2006 dated 5-6-2006 notified the Sales Tax Rules, 2006. The period involved in this case is after implementation of the above-cited Sales Tax Rules. According to Rule 28(1) of Chapter-V of these rules, monthly sales tax return filed by the claimant shall be treated as refund claim once all the supportive documents including the requisite data in the format or software (RCPS). It was also notified that no refund claim should be entertained if the claimant fails to furnish the claim on the prescribed software (RCPS) along with supportive documents within sixty days of the filing of return. The appellant failed to comply these instructions and admitted that due to procedural omission they could not file refund ,claim along with supportive documents within due date."
' This has brought the registered person in appeal before us.
3. At the very outset we noticed that the appellant filed appeal before the Tribunal on 8-8-2008 which was beyond the prescribed limit of sixty days as provided in section 46 of the Sales. Tax Act, 1990. The appellant, through a separate application for condonation of delay stated that the order of the Collector (Appeals) dated 9-4-2008 was never served Lon the appellant who is carrying on seasonal business of cotton ginning whereas the factory remains closed during the off season. The order of the Collector (Appeals) allegedly dispatched to the appellant during the off season was returned to the Sales Tax Department without service. When the appellate order did not reach the appellant, it addressed a letter to the concerned Collector (Appeals) to know the fate of appeal.
The registered person was informed that his appeal had been decided and copy of the order was dispatched to him on 19-5-2008. However, when he stated that the appellate order had never reached him, he was advised to deposit the prescribed fee for obtaining duplicate copy of the appellate order. On deposit of the fee certified copy of the order was issued on 31-7-2008 on the basis of which the instant appeal was filed.
4. The learned AR explaining the reasons of delay in filing the appeal contended that the appeal be treated as having been filed in time because on 19-5-2008 when the appellate order was the first appellate authority was dispatched to him, the factory was closed because the ginning season had come to an end. Alternatively he requested the condonation of delay on the basis of judgments reported as (1987) 56 Tax 130 (S.C. Ind.), 2002 PTD 549 and 2002 PTD 506 wherein it was ruled that the application for condonation of delay should be considered liberally and objectively particularly for the reason that the appellant does not stand to gain anything by delay in filing of appeal.
5. We have given due consideration to the arguments of the learned AR and are persuaded to agree with him in condonation of delay in filing appeal for the reason that the ginning season had expired when the order was dispatched to the appellant by the office of the Collector (Appeals).
The statement of the learned AR that the said order was not served on the appellant sounds plausible. Even otherwise the appellant does not stand to gain anything either by not filing appeal against the order of the Collector (Appeals) or delaying it. Besides, there is no dearth of rulings by the courts of this country as well as of foreign jurisdiction to the effect that justice should not be sacrificed at the altar of technicalities. We, therefore, condone the delay and proceed to decide the case on merits.
6. As discussed above the ground on which the claim of refund was denied was the filing of data on the prescribed software (RCPS) beyond the prescribed limit of sixty days. The learned AR pleaded that the refund could not be denied merely on the basis of delay in the submission of data on RCPS because it would be violative of Article 25(1) of the Constitution of Pakistan which lays down that "No person shall be deprived of his property save in accordance with law". To reinforce his claim the learned AR referred to the judgment of the Supreme Court of Pakistan in the case of Pfizer Laboratory Limited v. Federation of Pakistan reported as PLD 1998 SC 64. In the said case the Apex Court after reviewing the various case laws on the subject reached the following conclusion:- "The above resume or the case-law of Indian, English and Pakistan jurisdictions indicates 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. It is also evident that claims for the refund of the amount paid as a tax or other levy of account or mistake as to want of constitutional/ legal backing or because of exemption are at par. It is also apparent that such payments are held to be not covered by Rule 11 of the Central Excise Rules, 1944, or section 27(1) of the Indian Customs Act, 1951, or section 33 of the Act etc. The refund of such amounts are allowed by the superior Courts inter alia in India on the basis of section 72 of the Contract Act which provides that "a person to whom money has been paid or anything delivered by mistake or under coercion must repay or return it". Such refunds can be claimed either by filing a suit for the recovery of the amount for which the period or limitation applicable would be three years under Article 96 of the First Schedule to the Limitation Act (which provides period of three years from the date mistake becomes known to the plaintiff if no disputed fact is involved. The Indian Supreme Court and that various Indian High, Court referred to in the cited case-law hereinabove had ordered the refund of the amounts involved in exercise of their Constitutional jurisdiction under Article 226 of the Indian Constitution. In Pakistan, Sindh and Lahore High Courts have also allowed the refund of such amounts under Article, 1999 of the Constitutional in exercise of their of their constitutional jurisdiction in the case of Ghulam Abbas v. Member (Judicial), Central Board of Revenue (supra) and Kohinoor Industries Ltd., Faisalabad v. Ministry of Finance (supra).
' However, we may clarify that the object of providing limitation inter alia, in the section 32 of the Act is to finalize the transactions within the period specified therein so that there may not be any adverse financial implication after the expiry of the period mentioned therein, for which provisions for contingency are made in a yearly budget. Though we have held that the instant case is not covered by section 33 of the Act by approving the view taken by a Division Bench of the High Court of Sindh in the above case of Ghulam Abbass v. Member (Judicial) Central Board of Revenue referred to hereinabove, but it may not be understood that we are lading down that a party is free to claim refund of a tax or any time even after the expiry of 20 years. If a suit is to be filled for the refund, it should be within the statutory period provided under the relevant Article of the First Schedule to the Limitation Act, or if' the refund of the same is to be claimed by invoking in aid the constitutional jurisdiction of a High Court. The petitioner should approach the Court promptly. The petition should not suffer from latches which may defeat the claim. We cannot approve the view that a party can claim the refund of an amount paid to a Government functionary under a mistake without any constraint of limitation as it would adversely affect the good governance in financial matters."
From the cumulative reading of the judgment of the Apex Court, Sales Tax Refund Rules 2006 issued vide S.R.O. 55(1)12006 dated 5-6-2006 and section 66 of the Sales Tax Act, 1990, it is quite clear that the claimant of refund has to adhere to and comply with certain para meters in order to be entitled to Refund. Rule 28 of the Sales Tax Refund Rules, 2006 provides that the return of sales tax is to be treated as a claim of refund and no claim would be entertainable if the claimant fails to provide the claim on the prescribed software (RCPS) along with supportive documents within 60 days of the filing of return. According to sub-rule (2) of Rule 28 the Collector is authorized to extend the period of 60 days by a further period of 30 days if the claimant makes a written C request justifying the reasons for delay in submission of documents and supportive data. Admittedly the software along with supportive data were filed on 20-9-2007 whereas the limitation of 60 days had already expired on 2-9-2007. Neither from the orders of the authorities below nor from the grounds of appeal we find any evidence to the effect that the registered person even made a request for extension in time for issuance of refund. As such, he miserably failed to adhere to the conditions laid down in Rule 28 of the Sales Tax Rules, 2006 for the claim of refund. As regards reliance of the learned AR on section 66 of the Sales Tax Act, 1990 which provides limit of one year for the claim of refund, we have gone through the relevant provisions carefully and are of the view that the said section does not cover the case of the appellant 'because the period of one year for issuance of refund is applicable to the ...Refund of tax paid or over paid through inadvertence, error or misconception [or refund on account of input adjustment not claimed within the relevant tax period. It is not the case of the appellant that its claim of refund is based upon tax paid through inadvertence or error. Rather the refund has accrued because of the tax paid- along with the electricity bills.
6. From the facts discussed above it is quite evident that the appellant failed to lodge the claim of refund within the period specified in Rule 28 of the Sales Tax Rules, 2006. Request for extension in time by 30 days as laid down in sub-rule (2) of Rule 28 of the Sales Tax Rules, 2006 also does not appear to have been made. Judgment of the (SC) in the case of Pfizer Laboratories Ltd. Is also of no help to the appellant because the Apex Court in the said judgment also did not approve of lodging the claim in utter disregard of limitation provided in the relevant laws/rules. In a recent judgment reported as 2009 PTD 1698 High Court also upheld the rejection of refund under similar circumstances.
7. For reasons recorded hereinabove we are of the considered opinion that the claim of refund of the appellant has been rightly rejected by the authorities below because of violation of rule 28(2) of the Sales Tax Rule, 2006. We, therefore, do not feel inclined to interfere with the judgments of the authorities below and the same are maintained.
8. Resultantly miscellaneous application for condonation of delay is allowed whereas appeal of the registered persons fails.