The captioned sales tax appeals have been filed by the revenue under section 46 of the Sales Tax Act, 1990 and assailed the consolidated order of the learned Commissioner Inland Revenue (Appeals) vide Order-in-Appeals Nos.11-12 of 2010 dated 3-6-2010.
2. Facts leading for disposal of the instant appeals are that the registered person claimed refund of input tax against zero-rated supplies made in October, 2008 and January, 2009 whereby the STARR Computer System observed certain discrepancies which reads as under:-- Seller name Seller Reg. No Sales Tax Amount Objections Messrs Adnan Corporation0801482202073 18,149 Scrutiny for verification of input tax.
Messrs Adnan Corporation0801482202073 141,435 Scrutiny for verification of input tax.
3. Thereafter, the above mentioned discrepancies were confronted to the registered person by way of issuance of show-cause notices dated 18-9-2009, 19-9-2009 and explanation given by the registered person in this respect was treated unsatisfactory, which resulted rejection of refund worth Rs.18,149 and Rs.141,435. Feeling aggrieved, the registered person/respondent preferred an appeal before the Commissioner of Appeals, Inland Revenue, Faisalabad who by virtue of his order dated supra set aside the order-in-originals by holding that the name of the alleged supplier namely Messrs Adnan Corporation has been cleared from the objection of scrutiny for verification of input tax and STARR System has validated the invoices issued by him in some other cases like as Order-in-Original No.741 of 2007 dated 5-6-2007, Order-in-Original No.737 of 2007 dated 5-6-2007, Order-in-Original No. 745 of 2007 dated 5-6-2007 in case of Messrs Zahid Jee Fabrics Ltd. Therefore refund was allowed to the registered person as well. Being aggrieved by the relief allowed by the Commissioner (Appeals), the revenue-department has now come up in the second appeal before this Tribunal.
4. The' learned DR has vehemently argued that the relief allowed by the Commissioner (Appeals) is contrary to facts of the instant case as Messrs Adnan Corporation has been declared a black- listed person therefore no refund can be allowed against his invoices. Conversely, the learned AR urged that neither such objection of unit black-listed was primarily levelled in the show-cause notice nor the same was confronted and adjudicated in impugned adjudication order as well as in the first appellate order therefore, raising of such objection for the first time by the revenue department in the grounds of appeal renders it not only illegal but also beyond the scope and contents of the show-cause notice. The learned AR in this regard also quoted the judgment of the honourable Apex Court of Pakistan reported as (1987 SCM R 1840).
5. We have heard the learned representatives for both the parties and given our due consideration to the rival arguments and have also examined the record of the case in detail. Admittedly, the STARR System has already cleared the name of Messrs Adnan Corporation from the objection of scrutiny for verification of input tax and the revenue-department has also allowed refund against his invoices to Messrs Zahid Jee Fabrics Ltd., Faisalabad in the orders cited supra therefore, the respondent cannot be denied the same treatment.
6. Nevertheless, charge of "black-listing" was not levelled in the impugned show-cause notice nor the same was adjudicated by the learned adjudicating authority or by the first appellate authority therefore, registered person's refund cannot be rejected merely on the charge of black-listing. It is a wholesome principle of law that an objection/chargesheet which was not made a part of allegations contained in the show-cause notice and never adjudged in adjudication order and even in the appellate order cannot be levelled for the first time in grounds of appeal taken before the Appellate Tribunal. The stance taken by learned counsel of registered person is fully supported by the ratio decidendi in the reported judgment of Apex Court of Pakistan cited as (1987 SCM R 1840) wherein it has been held as under:-- "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 palpably legal infirmity, we do not consider it necessary to examine the other contentions raised by the learned counsel."
7. In view of what has been discussed above, we hold that any objection which had not been levelled and confronted in the show-cause notice as well as not adjudicated in the adjudication orders cannot be levelled for the first time before the Appellate Tribunal. Since the instant issue has already been resolved by honourable Supreme Court of Pakistan therefore, the titled appeals filed by the revenue on this issue needs no consideration by this Court. Consequently, we do not warrant any intervention in the impugned appellate orders which are hereby maintained as well.
8. As a result, both the departmental appeals are dismissed being devoid of any force. .