ORDER JAWAID MASOOD TAHIR BHATTI, JUDICIAL MEMBER - The appellant through this appeal has objected to the Sales Tax Order-in-Appeals Nos. 369 to 375 of 2008, dated 2.4.2008 recorded by the learned Collector (Appeals), Collectorate of Customs, Sales Tax and Federal Excise (Appeals), Multan on the following grounds:--
(i) That the appellant filed sales tax refund claim for the month of "09-2003" as per the provision of Rule 4 of Sales Tax Refund Rules, 2002 issued under Notification S.R.O. No. 575(l)/2002, dated 31st August, 2002.
(ii) That the appellant filed his refund claim alongwith the supportive documents required under Rule 9 of the Sales Tax Refund Rules, 2002.
(iii) That the appellant has been bona fide purchaser of the goods from his suppliers and he has been making payment against purchases made from the suppliers exactly in accordance with the provision of the Section 73 of the Sales Tax Act, 1990. The appellant paid sales tax on the purchases to his suppliers exactly in accordance with provision of the Section 3 of Sales Tax Act, 1990 and claimed input tax as contemplated in Section 7 of Sales Tax Act, 1990.
(iv) That the appellant subsequently consumed goods purchased from his suppliers in his exports.
The export being zero rated, the respondent has entitlement of the claim of refund upto the extent of input tax against the purchased goods, which were subsequently exported.
(v) That the appellant was alleged that the supplier of the appellant was non-filer. The appellant did not violate any provision of the act and the payments were also made in accordance with the provision of Section 73.
(vi) That no discrepancy, so far as the record of the appellant submitted for the purpose of refund claims is concerned, has even been reported to the appellant. The record of the appellant has been complete in every as per the provision of Sales Tax Law and Rules framed thereunder and if there is any procedure lapse on the part of the supplier of the appellant, the appellant, certainly, could not be penalized for that acts/lapse of his suppliers as per the famous Maxim "Actus curiea neminem gravabit''.
(vii) That there is no scope in the sales tax law and rules framed under whereby the revenue authority can reject or defer as the case may be the refund of the respondent on the fault of the suppliers of the appellant hence issuance Of the show-cause notice in reply is in total departure from the Sales Tax Law.
(viii) That if the refund branch was of the opinion that refund claim or part thereof was not genuine then they should issue show-cause notice in writing, within 14 days but in the instant case show- cause notice has been issued after the lapse of about 4 (four) years. As per the provision of sub- rule (1) of Rule 8 of Refund Rules, 2002 the time for issuance of show-cause notice is 14 days only and hence show-cause notice in reply is hopelessly time- barred and no recovery of rejection of refund can be enforced on the basis thereof.
(ix) That the input tax of the appellant can be held inadmissible under the provision of Sections 7, 8, 73 of the Sales Tax Act, 1990, but in the instant case there is no any discrepancy on the part of appellant which may be attributed to the violation of above-mentioned Sections of Act. The appellant, admittedly filed' the correct return of the sales tax on a given time under the provision of Section 26 of the Sales Tax Act, 1990. The appellant also holds the correct sales tax purchase invoices as contemplated under Section 23 of the Sales Tax Act, 1990 and claimed the input tax on those invoices as a legal right conferred upon the respondent under Section 7 of the Act, 1990. So far as the matter of Section 73 of the Act, 1990 is concerned, it is submitted that all the payment has been made to the supplier of the respondent exactly in accordance with the provision of Section 73 of the Act, 1990.
(x) That input tax of the appellant, claimed exactly as per the provision of Section 7 read with Sections 73 and 8(1) of the Sales Tax Act, 1990, cannot be held in admissible and thus is refundable."
2. I have heard the learned representatives from both the sides and have also perused the impugned Order- in-Appeal, Order-in-Original, show-cause notice and other relevant record of the case. In this case, the appellant has submitted that its refund claim is with supporting documents in accordance with the Rules 4 and 9 of the Sales Tax Refund Rules. The appellant being a bona fide purchaser of the goods complied the requirements of Section 3 of the Sales Tax Act, 1990. All the purchases were consumed in the manufacturing^ of the product which was being exported as zero rated. The adjudicating authority has issued show- cause notice after two years but as per sub-rule (1) of Rule 8 of Refund Rules, 2002, he was required to raise objection in respect of claim within 14 days. It has been contended on behalf of the appellant that the show-cause notice is time- barred as the department has failed to follow the prescribed rules. In this regard, the settled principles of law are that if the law provides certain things to be done in a particular way, it is to be done in the same way or not at all. If anything done contrary to the commandment of law, it would have no legal effect. In this regard, the decision of the Hon'ble Supreme Court of Pakistan reported as 2004 SCM R 838 has been referred.
3. On the other hand, the learned D.R. Is supporting the impugned order. He is of the view that there is no time limit provided under sub-section (4) of Section 10.
According to learned D.R., as the appellant failed to submit any evidence to prove the tax for which they Were claiming refunds, therefore, the adjudicating authority has rejected the claim which has rightly been upheld by the Collector (Appeals).
4. I have found that in this case the department has failed to confront the appellant regarding discrepancies that the prescribed limit as provided by the Rules under which there would be no escape. Return in this case has been filed within time and the input tax claimed on the invoices was fully claimed under the law after which no show-cause notice was issued as required by the law and rules on the subject. After the lapse of two years, the department has issued show-cause notice which itself is contradictory to the Audit Report. In these circumstances, I am constrained to observe that the department's act for such a belated notice was coram non judice and, therefore can find no elgal support. The show-cause notice is, therefore, invalid and consequently all the proceedings taken thereof have no legal effect as against the rights of the appellant. The impugned orders of the officers below are, therefore, set aside and the appeal filed by the appellant is allowed.