This appeal has been filed by the registered- person who is aggrieved by the order of the , learned CIR(A) No. 190/2010 dated 18-10-2010.
2. The brief facts of the case are that the, registered ' person received refund amounting to Rs.4,23,427 for the following tax periods:-- SR.NO. SELLER REGNO SELLER NAME TAX PERIOD PAID 0803481900855M/S ADEEL PACKAGES 1-2004 19,500 0803481900855M/S ADEEL PACKAGES 2-2004 20,541 0803481900855M/S ADEEL PACKAGES 2-2005 60,457 0803481900855M/S ADEEL PACKAGES 3-2004 19,713 0803481900855M/S ADEEL PACKAGES 5-2004 33,429 0803481900855M/S ADEEL PACKAGES 6-2004 47,951 0803481900855M/S ADEEL PACKAGES 7-2004 27,128 0803481900855M/S ADEEL PACKAGES 8-2004 3,233 0803481900855M/S ADEEL PACKAGES 9-2004 64,226 0803481900855M/S ADEEL PACKAGES 10-2004 72,821 0803481900855M/S ADEEL PACKAGES 11-2004 54,428 0803481900855 TOTAL 423,427
3. The registered person had been sanctioned the refunds of inputs claims from supplies made to the registered person by Adeel Packages. Post refund audit was conducted for the aforementioned periods, and on account of blacklisting of -the said supplier the registered person was found to be involved in a tax fraud under section 2(37) of the Sales Tax Act, 1990. Besides this it was alleged that no physical transfer of goods took place and the registered person was charged with the violations of sections 4, 7, 8, 8A, 10, 22, 26 and 73 of the Sales Tax Act, 1990 read with the relevant Refund Rules.
A show-cause notice was accordingly issued vide C.No.STA/PRA/53/08/764 dated 4-11-2008 and it was conveyed to the registered person that the said amount was to be recovered in terms of sections 11(2) and 36(1) of the Sales Tax Act, 1990 read with relevant Refund Rules along with penalty and default surcharge under sections 33 and 34 of the Sales Tax Act, 1990. On the basis of this show-cause notice adjudication was accordingly made vide Order-in-Original No.366 dated 30-3-2010. The aggrieved person preferred appeal before the learned CIR(A), Faisalabad who vide his order referred to above conveniently dismiss the appeal.
4. The case was argued at length by both the Revenue as well as the appellant. The D.R argued that once the supplier is blacklisted then all the invoices issued in the past are liable to be rejected and recoveries made thereon from the registered persons to whom such supplies had been made. The counsel for the appellant argued that among other things argued that the impugned order was not only prejudiced and biased but was also discriminatory. He stated that the same learned Commissioner (Appeals), had accepted the appeals on the same groundi in order in Appeals Nos.2007 of 2010, 2008 of 2010 and 2009 of 2010 while relying upon Rule 12(5) of the Sales Tax Rule, but in the impugned order the appellant's appeal has been rejected. It was also argued that the honourable Supreme Court of Pakistan in a case cited as PTCL 2005 CL 138 that a facility which is allowed to one and is denied to others tantamount discrimination. It was further argued that the Post Refund Audit pertained to 2004 'and Adeel Packages was blacklisted on 29-12-2007 at the relevant time the status of the said supplier was active and was regularly filing the sales tax returns. It was also argued that subsequently this Tribunal had already vacated the order of blacklisting of Adeel Packages and remanded the matter. He reiterated the issue settled by the honourable Supreme Court's above citation in which it had been laid down as under:-- "It is well settled principle of law that the executive orders or notifications, which confer right and are beneficial, would be given retrospective effect and those which adversely effect or invade upon vested right cannot be applied with retrospective effect".
During the course of hearing of the appeal and in the grounds it was also argued that the show cause notice was issued on 4-11-2008 and D consequent to this show cause notice the order in original was passed on 30-3-2010 after 147 days. It was stated that the adjudicating authority was under an obligation to pass the said order-in-original within 120 days. He stated that the adjudicating authority slid not seek extension of time from the Collector for 60 days as was mandated by the law and thus the order was hit by limitation under section 36(3) of the Sales Tax Act, 1990. He placed reliance on a case cited as PTCL 2008 CL 1 and 2008 PTD 60 in which the issue of limitation has been decided at length by the honourable Lahore High Court Lahore. Keeping the above discussion in view we have no doubts in our minds that the appellant's appeal needs to be accepted on the following two facts:--
(1) The status of Adeel Packages has already been restored by this Tribunal as active and blacklisting orders have been vacated.
(2) The D.R. Could not rebut the arguments that the order-inoriginal was hit by limitation as he could not produce an order/authority of the Collector to grant extension in the adjudicating proceedings as required by section 36 of the Sales Tax Act, 1990.
5. The appellant's appeal is accepted and orders of the authorities below are vacated.