' M.A. JAVED SHAHEEN (JUDICIAL MEMBER).---Titled appeal has been filed by the registered person/appellant against consolidated Orders-in-Appeals Nos.142-151/2009 dated 28-1-2009 passed by learned Collectorate of Customs, Sales Tax and Federal Excise (Appeals) Faisalabad on the following ground:-- "That the Collector (Appeals) has erred in upholding the disallowance of input tax aggregating to Rs,59,064 in terms of sections 10(4) and 11(2) of the Act."
2. Brief facts of the case are that during processing/scrutiny by the Auditor (Refund), the appellant had claimed refund amounting to Rs,39,564,Rs,11,700 and Rs,7,800 for the tax period November, 2007, December, 2007 and January, 2008 respectively. The STARR computer system had pointed out certain discrepancies like registration suspended, non-tiller and exceeded declared output and on the basis of these discrepancies, the registered person was charged with the violation of sections 4, 7, 8(1), 10, 26 of the Sales Tax Act, 1990 read with section 2(14) and Refund Rules (The Sales Tax Rules, 2006) notified vide S.R.O. 555(I)/2006 dated 5-6-2006. Accordingly. Show-cause notices were issued under section 11(2) of the Sales Tax Act, 1990 and in terms of Rule 37 of the Sales Tax Act Rules 2006 (Refund Rules) ' notified vide S.R.O. 555(1)/2006 dated 5-6-2006 as to why input tax/refund may not be rejected under the law and penal action may not be taken under section 33(11)(c) of the Sales Tax Act, 1990.
In reply to the show-cause notice, the taxpayer, allegedly, had failed to submit requisite documentary evidences. The adjudication proceedings culminated in passing Orders-in-Original Nos.1467 of 2008, 1514 of 2008 and 1457 of 2008.
3. Being aggrieved with the treatment meted out by the Assistant Collector (Refund), the registered person filed appeal before the Collector (Appeals) who vide his order dated 28-1-2009 partially accepted the appeal of the registered person. Feeling dissatisfied with the treatment given by the learned first appellate authority, the appellant/registered person is in further appeal before the Tribunal.
4. The learned AR appearing on behalf of the appellant/registered person has challenged the orders of the authorities below and has argued that during the adjudication proceedings, the documents in respect of refund claim were submitted but the same were not considered by the concerned authorities. He has further argued that the authorities below ignored the judgments of the High Court and Supreme Court which are binding of the lower forums. The learned AR has contended that input tax of Rs,57,534 relating to invoices issued by Messrs Images Packages on the alleged basis that the input tax claimed by the appellant relates to the invoices issued by a supplier whose registration was suspended under the Sales Tax Act, 1990. The learned AR has submitted that the invoices were issued by Messrs Rauf Electronics against the input tax of Rs,840 was on the alleged basis that the supplier is non-filer of the sales tax return. He further submitted that input tax of Rs,690 relating to invoices issued by Messrs Cibro Agencies (Pvt.) Ltd., on the alleged basis that the input tax claimed by the appellant exceeded the output tax of the supplier.
He has contended that appellant had paid input tax to the suppliers in accordance with section 73 of the Sales Tax Act, 1990 whereas the responsibility of the suppliers has to be deposited input tax into the Government treasury who were registered with the Sales Tax Authorities. He has contended that the evidence in the form of supplier's sales tax returns, supply registers were duly submitted by the appellant.
5. The learned AR of the assesse has produced before us a copy of letter dated 27-11-2010 regarding restoration of registration of Messrs Image Package issued by the Commissioner, this issue will be overruled. The contention of the AR has much force that Messrs Rauf Electronics and Messrs Cibro Agencies (Pvt.) Ltd., are "Commercial Importers" who are duly filing their sales tax returns on quarterly basis and the objection of the non-filers cannot be raised against the appellant for disallowance of the input tax. The transaction was made with th e alleged suppliers and sales invoices were properly issued under section 23 of the Sales Tax Act, 1990 and sale tax records were maintained under section 22 of the Act. This objection is further overruled in the light of procedure laid down in the Standing Order No,3 of 2006 dated November 2, 2006 at Sr. No,1(i) issued by the Collector of Sales Tax Faisalabad in the appellant's own case.
6. I have heard the arguments of both the rival parties and have perused the relevant record available on file. Keeping in view the above discussion, both the/orders of authorities below are declared to be illegal, void and without lawful authority and the case is remanded back to adjudicating authority having jurisdiction with directions to provide an ample opportunity of being heard and to pass a fresh speaking order. The registered person is directed to submit all the relevant documents before the learned adjudicating authority in support of his refund claim.
7. The appeal filed by the registered person is disposed of as above.