' ROOH-UL-AMIN KHAN, J.---The appellants have filed this appeal to seek answer to the following questions of law:-
(1) Whether as per facts and in the circumstances of the case "the Tribunal" has correctly interpreted the provisions of section 4(1) of the Central Excise Act, 1944 (hereinafter referred to as "the Act")?
(2) Whether as per facts and in the circumstances of the case, "the Tribunal" taken into consideration the applicability of sections 3, 3-B and 4(1) of "the Act" read with Rules 7,9, 43, 44, 52, 226, 231-A, 236, 241, 243 and 244 of the Central Excise Rules, 1944?
(3) Whether as per facts and in the circumstances of the case, the respondent has properly maintained the prescribed documents as required under "the Act", rules and procedure or to be guided by the Central Excise Officer?
' (4) Whether as per facts and in the circumstances of the case, the respondents has violated the procedure laid down in Central Excise Rules, 1944 while maintaining the documents RG-land Duty Production Report as required under sub-rule (1) of Rule 53, and sub-rule (1) of Rule 226, ibid?
(5) Whether as per facts and in the circumstances of the case, "the tribunal" has rightly held that the assessable wholesale cash price under section 4(1) of "the Act" is correct and in accordance with law applicable to the matter?
(6) Whether as per facts and in the circumstances of the case, various cement manufacturers can be termed as one class of consumer or separate as envisaged under section 4(1) of "the Act"?
(7) Whether as per facts and in the circumstances of the case, an taxpayer is required to act and abide the provisions of "the Act" on his own or to be guided by central excise officer?
(8) Whether as per facts and in the circumstances of the case, the leviable central excise duty has been paid by the respondent in terms of section 4(1) of "the Act" on the assessable wholesale cash price?
(9) Whether as per facts and in the circumstances of the case, the Central Excise General Order No, 5/59 has been issued in accordance with the law and is applicable to the matter?
(10) Whether as per facts and in the circumstances of the case, the principal of highest assessable price is in accordance with the provisions of section 4(1) of "the Act" and whether it applies only to assessm ent on retail price basis or all class of consumers?
(11) Whether as per facts and in the circumstances of the case, the fixation of assessable tariff value within the meaning of subsection (2) of section 3 of "the Act" has correctly been appreciated by "the Tribunal"?
(12) Whether as per facts and in the circumstances of the case, the proper determination of value has been made by the respondent in terms of section 4(1) of the Act"?
(13) Whether as per facts and in the circumstances of the case, the valuation of contracted assessable value is to be determined in accordance with section 4(1) of "the Act" read with CEGO No, 4/59?
2. Brief but relevant facts of the case are that in pursuance of information to the effect that the respondent has assessed the central excise duty of his paper sacks of same kind and quality supplied to various consumers during the period from June, 1995 to June, 1998 at lower values. In consequence of the above said information, the staff of Intelligence and Investigation (Customs, Central Excise and Sales Tax), Peshawar visited' the unit of respondent and found the information as correct. After probe into the matter, the respondent was called as he had violated the provisions of sections 3, 3-B and 4(1) of the Central Excise Act, 1944 read with Rules 7,9, 43, 44, 52, 226, 231-A, 236, 241, 243 and 244 of the Central Excise Rules, 1944 read with Central Excise General Order No, 53 of 1967. The respondent was found guilty of making short payment of central excise duty amounting to Rs,1,72,06,126 during period from June, 1995 to June, 1998, therefore, a contravention case was made against him which was sent to the Adjudicating Officer for adjudication.
3. After fulfilling all legal and codal formalities and after hearing both the parties, the Adjudicating Officer directed the respondent to pay the differential amount of central excise duty of Rs,1,72,06,126 along with additional duty under section 3-B of the Central Excise Act, 1944. He also imposed a penalty of Rs,50,000 under rule 210 of the Rules for violation of the provisions of the Act and the Rules.
4. Aggrieved with the aforesaid order passed by the Adjudicating Officer, the respondent filed an appeal before the Customs, Sales Tax and Central Excise, Appellate Tribunal, Peshawar Bench, Peshawar, who after hearing the parties, accepted the same vide judgment and order dated 10-6- 2005. Hence this Appeal.
5. Learned counsel for the respondent at the very outset raised a preliminary objection regarding maintainability of the instant Appeal on the ground that the appeal is not filed by the competent person as provided by section 36-C of the Central Excise Act, 1944.
6. Before entering into the merits of the case, in light of the above referred preliminary objections, we would like to see the maintainability of the instant Reference, in its present form. For this purpose, the section 36-C of the Central Excise Act, 1944 is reproduced which reads as under:- "36C. Appeal to High Court.---(1) An aggrieved persons or the Collector may file an appeal in the High Court in respect of any question of law arising out of an order under section 35C.
(2) The appeal under this section shall be filed within sixty days of the date upon which an aggrieved person or the Collector is served with notice of an order under section 35C.
(3) Where an appeal is filed under subsection (1) by the aggrieved person, it shall be accompanied by a fee of one thousand rupees.
(4) An appeal under this section shall be heard by a Bench of not less than two Judges of the High Court.
(5)
(6) .
(7)
(8) ..
7. Plain reading of the above quoted section provides that only an aggrieved person or the Collector may file an appeal in the High Court in respect of any question of law arising out of an order under section 35-C.
8. Perusal of the reference and a glance over the title of reference divulges that the instant Reference application have been filed by the two persons i,e, (i) Collector Sales Tax and Federal Excise and (ii) Additional Director Intelligence and Investigation Peshawar. The Memorandum of Reference is not signed by the above said two persons,-thus only by mentioning the designation of the persons in the title of Reference, it could not be ascertained that the Reference has been filed by the Collector. For this purpose, we turn the page and for looking at the power of attorney. The power of attorney, available on file, was perused with particular attention, which disclosed that the same has not been signed by the Collector, Sales Tax and Federal Excise. On the printed form, the word "Collectorate" is printed instead of "Collector" and the same has been affirmed by the stamp affixed under the signature of a person from Collectorate. The stamp affixed on the power of attorney also disclose that the power of attorney is not signed by the Collector rather by an unknown person from the Collectorate of Sales Tax, Peshawar.
10. Section 36C of the Act (ibid), as mentioned above, empowered only two persons i,e, Collector or aggrieved person. From the above said observation and perusal of the record, it is established that the reference has not been filed by the Collector. Now, the question arise whether person signed the power of attorney and have filed the Reference can be considered as an aggrieved person, the answer to this question would be a big No because the word used in section 36C of the Act (ibid) disclosed the aggrieved person along with Collector. In our views, the aggrieved person and Collector used in section 36C are significant. The aggrieved person denotes a person, who has got a legal grievance i,e, a person illegally and wrongfully deprived of anything to which he is legally entitled. The aggrieved person is not a person who suffers some sort of disappointment. In the instant case, the Director may not be termed as legally deprived of anything to which he was legally entitled. Moreover, in the instant case, if the term "aggrieved party" is referable to any officer of the Sales Tax then the word "Collector" would be a sheer addition to the statute and will become redundant. The legislature in its wisdom have purposely used and signified the two different expression i,e, "Collector" and "aggrieved person". It is golden principle of interpretation that the redundancy cannot be attributed to the legislature. This is also settled law that all the acts shall be done in the manner in which it is prescribed to be done and not another manner. In the instant case, the appeal being not filed by the Collector is incompetent and not maintainable in its present form.
11. Before 30th June, 2007, the provision of section 196 of the Customs Act, 1969 were synonymous to section 36C of the Central Excise Act, 1944. The Section 196 of the Customs Act, 1969 was amended and the word (Director of Intelligence and Investigation) and (Additional Director) were inserted by the Finance Act, 2007 (IV 2007). Before 2007, the section 196 of the Customs Act, 1969 was embodied with the same words as provided in section 36C of the Central Excise Act, 1944.
12. The question of maintainability in similar case came before the august Supreme Court of Pakistan in a case under Customs Act, title "Director, Directorate General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Limited and others (2006 SCMR 129), wherein the law on the subject was laid down in the following terms:-- "It is pertinent to note that section 196 has specifically authorized the Collector to file appeals in the High Court on behalf of the Customs Department. It is well-settled and established principle of law that when the Legislature requires the doing of a thing in a particular manner then it is to be done in that manner and all other manners or modes of doing or performing that thing are barred."
' In Para. No,15 of the judgment (supra), the Hon'ble Supreme Court of Pakistan held that:-- "In the case of Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505 this Court while considering the impact of violation or non-observance of the method prescribed by law for doing an act in a particular manner or mode observed that if the law had prescribed method for doing of a thing in a particular manner, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted."
' Thus, in the case (supra), the Hon'ble Supreme Court of Pakistan has settled the law that only the Collector is competent to file appeal/reference before the High Court within time provided by the Statute and no other person.
13. The above said judgment was followed by this Court in the case of Additional Collector Sales Tax v. Messrs Associated Industries Ltd. Reported in 2009 PTD 1799 wherein it was held that:- "Now the question arises whether with the approval of Collector or Additional Collector, an Assistant Collector can be considered as an aggrieved person and can file appeal on behalf of them? If this question refers to an appeal before the appellate Tribunal, the answer to the question would be in the affirmative because under section 194A of the Customs Act, 1969, and officer of Customs, aggrieved by an order passed by an officer of Customs as an Adjudicating Authority under section 179 of the Act, can file appeal before the appellate Tribunal. Similarly an officer of Customs aggrieved by an order passed by the Collector (Appeals) under section 193 or an order passed by the Board or Collector under section 195 of the Act, can file an appeal before the appellate Tribunal, if authorized by the Board in the official Gazette. But if the question relates to filing of an-appeal in this Court under section 196 of the Customs Act, the answer would be in the negative. It is by now settled that so long as an appeal is not filed and verified by Collector, it cannot be held to be competent. The case of Director, Directorate-General, of Intelligence and Investigation and others v. Messrs Al-Fait Industries (Pvt.) Ltd. And others (supra), may well be referred in this behalf."
14. In the instant case, admittedly, the Appeal has not been filed by the Collector and the Memorandum of Appeal has neither signed nor verified by the Collector, thus, deriving wisdom and respectfully following the dictum laid down by the Hon'ble Supreme Court of Pakistan in case reported 2006 SCMR 129, we are of the firm-view that the instant Appeal being not filed in accordance with the mandatory provision of law is not maintainable in its present form. Hence, this appeal being, devoid of merits is hereby dismissed.
Appeal dismissed.
2013 P D (Trib.) 379 [Inland Revenue Appellate Tribunal of Pakistan] Before Zafar lqbal, Member Judicial and Zarina N. Zaidi, Accountant Member Messrs SHELL (PAKISTAN) LIMITED versus COLLECTOR OF SALES TAX, KARACHI Sales Tax Nos.166/K and 167/K of 2009, decided on 27th February, 2012.
(a) Petroleum Products (Development Surcharge) Ordinance (XXV of 1961)--- -------- S.4---Sales Tax Act (VII of 1990), S.3---Petroleum products---For the purposes of petroleum products the Petroleum Products (Development Surcharge) Ordinance, 1961 by virtue of its S.4 would have an overriding effect over the Sales Tax Act, 1990. [p. 3861 A
(b) Petroleum Products (Development Surcharge) Ordinance (XXV of 1961)- ----S.4---Sales Tax Act (VII of 1990), Sixth Sched., Item No,8 & S.3--S.R.O. 922(1) of 1999 dated 16-8- 1999---Petroleum products---Levy of sales tax---Taxpayer not allowed to pass on such levy to end consumers-Validity---Ministry of Petroleum on 23-9-1999 prescribed a price structure notification authorizing the taxpayer to charge sales tax on furnace oil, while permitting it to pass .On the burden to the end consumers---Taxpayers made a number of representations and it took the Ministry of Petroleum more than a month to issue a notification in harmony with S.R.O. 922(1)/99 dated 16-8-1999 which showed negligence and lack of harmony between the two government departments i,e, Ministry of Petroleum and Revenue authorities---Taxpayer could hardly be blamed for it or saddled with the responsibility to pay sales tax for the intervening period---On one hand the taxpayer was obligated to pay sales tax, ,while on the other hand it was not allowed to pass on the burden of tax to the end consumers, due to the failure of the Ministry of Petroleum to prescribe a corresponding price notification---Such position would be against the spirit of sales tax, which was an indirect tax and the taxpayer was denied the status of collecting agent of indirect tax---Appeals were allowed, show cause notices, orders-in-original and orders of First Appellate Authority were annulled and bank guarantees, if any given by the taxpayer were revoked and withdrawn. [pp. 386, 387] B & F Assistant Collector Customs v. Khyber Electric Lamps 2001 SCMR 838; Zamindara Paper and Board Mills (Pvt.) Ltd. v. Collector of Customs, Sales Tax and Central Excise 2003 PTD 1797; Atlas Tyre v. Additional Collector Adjudication 2003 PTD 1593; Caltex Oil v. Collector Central Excise 2005 PTD 480; Elahi Cotton Mills Ltd. v. FOP PLD 1997 SC 582; Frontier Ceramics v. Government of Pakistan 1999 PTD 4126; Mayfair Spinning Mills Ltd-. v.
Customs, Excise and Sales Tax Appellate Tribunal PTCL 2002 CL 115; Kohinoor Textile v. Federation of Pakistan 2002 PTD 121; Government of Pakistan v. Muhammad Ashraf PLD 1993 SC 176; Firdous Spinning and Weaving Mills v. FOP PLD 1984 Kar. 522; Chhiter Mal Narain Das v. Commissioner of Sales Tax (1970) 3 SCC 809; State of Tamil Nadu v. Cement Distributors (Pvt.) Ltd. (1973) 3 SCC 342; Central Excise Appeal K-220/04/8015 dated 30-9-2004 and CIT v. Kashmir Edible Oil Ltd. 2006 SCMR 109 rel. PLD 1963 SC 296; PLD 1995 SC 423; 1997 PTD (Trib.) 879; PLD 1963 (W.P.) Kar. 280; PLD 1997 SC 582; 1987 SCMR 1840 and Exide Pakistan v. Deputy Collector 2004 PTD 1449 ref.
(c) Sales Tax Act (VII of 1990)- ----S.36(3)---Recovery of tax not levied or short-levied or erroneously refunded---Limitation--- Show-cause notice was issued on 25-5-2001 and the Orders-in-Original were framed on 16-7- 2001---Orders-in-Original were framed after 45 days from the date of show-cause notice---In terms of proviso to S.36(3) of the Sales Tax Act, 1990, period prescribed at the time of passing of Orders-in-Original i,e, 16-7-2001, was 45 days---Orders-in-Original were barred by limitation--- Although power to grant extension of time limit existed but the department had not been able to file any document whereby it could be inferred that time limit had been extended by competent authority---Assessing authority had fallen into error by ignoring time limitation-When orders-in- original were passed the limitation period prescribed by the statute was 45 days---Order was, therefore, liable to be annulled. [p. 386] C CIT v. Kashmir Edible Oil Ltd. 2006 SCMR 109; Pace International v. Secretary 2006 PTD 340; SS Oil Mills Ltd. v. Secretary GST 2005 CL 592; CST v. Hilal Tanneries PLD 1976 Lah. 655 and Nagina Silk Mills v. ITO PLD 1963 SC 322 rel.
(d) Sales Tax Act (VII of 1990)--- ----Sixth Sched., Item No, 8 & S.3---S.R.O. 922(1) of 1999 dated 16-8-1999---Petroleum products--- Item No,8 of the Sixth Schedule to the Sales Tax Act, 1990 had granted exemption to certain petroleum products---Such exemption was conferred by statute---On 16-8-1999 vide S.R.O. 922(1) of 1999 dated 16-8-1999 the said exemption was withdrawn---Question was as to how through a subordinate legislation i,e, (a notification), a statutory provision i,e, Item No,8 of the Sixth Schedule of the Sales Tax Act, 1990 could be amended or omitted---Statutory Regulatory Order (S.R.O.) could not bring about an amendment, repeal or omission in the statute---S.R.O. 922(1) of 1999 dated 16- 8-1999 which purportedly took away the said statutory exemption was of no legal effect---Basis of show-cause notice in question was based upon the said S.R.O., and all subsequent proceedings and order became a nullity. [P. 386] D C.I.T. v. Kashmir Edible Oil Ltd. 2006 SCMR 109 rel.
(e) Sales Tax Act (VII of 1990)--- ----Ss.33 & 34---Penalty and additional tax---Scope---When the main levy failed the imposition of penalty or additional tax also failed. 3871E DG Khan Cement v. FOP 2004 SCMR 456 and Gandhara Nissan v. Sales Tax Department and others 2004 PTD 2371 rel. Muhammad Naseem for Appellant. Chaudhry Jawed, DR (LTU) for Respondent.
Date of hearing: 5th October, 2011.
' These appeals have been filed by the taxpayer/applicant against the Order-in-Appeals Nos.1092 and 1093 of 2008 dated 26-4-2008, on the grounds as set forth in the Memo of appeals.
2. The appellant is a multinational public limited company engaged in the business of manufacture and sale of petroleum products. The appellant is engaged in the country-wide .Distribution as also export of POL products and is registered under the Sales Tax Act, 1990 as also in the categories of the importer, manufacturer, distributor, wholesaler and exporter. The selling price of the petroleum products is regulated by the Ministry of Petroleum (hereafter: "MOP") under the Petroleum Products (Development Surcharge) Ordinance, 1961 (hereafter referred to as "the 1961 Ordinance"). In view of limitation of section 4 of the 1961 Ordinance, the appellant could not have sold its products at any price other than one notified by the MOP. Furthermore, any contravention in this regard whereby the appellant would sell beyond the notified price would have constituted an offence under the Price Control and Prevention of Profiteering and Hoarding Act, 1977 and the Essential Supplies Act, 1957.
3. That till 16-8-1999 petroleum products were exempted from Sales Tax as per item No,8 of the Sixth Schedule to the Sales Tax Act, 1990 (hereafter: "the 1990 Act"). Suddenly, however, through S.R.O. 922(I) of 1999 dated 16-8-1999 the said exemption was withdrawn. Strangely however despite the said withdrawal of exemption, the pricing structure by the MOP remained un-amended. As a result the appellant could not add the Sales Tax component in its selling price and hence could not recover Sales Tax from the customers. Thus the appellant could not collect and did not pay the Sales Tax. Later the MOP acknowledging this omission through office Memo dated 31-8-1999 prescribed payment/charging of sales tax but not for the product in question i,e, furnace oil for the product in question it was only though S.R.O. Dated 23-9-1999 that the MOP prescribed the pricing structure. The appellant therefore contended that between August 1999 to 23-9-1999 it was not under any obligation to pay Sales Tax since the mandatory pricing structure to charge Sales Tax was only prescribed vide S.R.O. (1)/99 dated 23-9-1999.
4. Without any dispute on the playability of Sales Tax an Audit was ordered by the Department and two Audit Observations dated 8-6-2001 were communicated repeating the same contention once again. The appellant submitted an appropriate reply to the audit observation vide letter dated 13- 6-2001.
5. The appellant had no other option at then but to challenge the above audit observation No,1 dated 8-6-2001 through Suit No,836 of 2001 before the High Court of Sindh against illegal demand of Sales Tax. The Hon'ble High, Court of Sindh vide order dated 25-6-2001 the Department to maintain status quo. The case was fixed in Court from time to time and ultimately the Honorable High Court of Sindh vide order dated 24-11-2005 directed the respondent department to issue proper notice and raise a demand thereafter accordingly.
6. Initially the Department was making an attempt to suppress the two show-cause notices issued on 26-10-2011. However, the show-cause notices were traced out and attested copies thereof were obtained (after paying copying fee of Rs,40) on 17-3-2005 (Annex N). These show-cause notices were repelled vide appellant's two letters dated 1-11-2006 followed by another letter dated 9-1- 2007.
7. The case was assigned later to the Addl. Collector (Adjudication) Mr. Badaruddin Ahmed Qureshi, who heard the case since 17-4-2006 to 15-1-2008 and passed the Order-in-Original No,4 of 2008 on 24-1-2008 rejecting all the grounds, arguments and the case-law furnished by the appellant's counsel as well as the Order in parallel case on the same facts in Sales Tax Appeals Nos.K-286 and K-309 of 2Q01 dated 14-6-2006 in the case of Messrs Caltex Oil Pakistan Ltd. Which was passed by a Division Bench of the Tribunal. Thereafter, the Commissioner of Sales Tax Appeals also rejected the first appeal vide his Order-in-Appeal No,1092 of 2008 dated 26-4-2008. There also the facts, grounds and arguments and case-law cited by the appellant were arbitrarily ignored or rejected.
Hence the instant appeal has been filed as per facts, grounds, arguments and case-law.
8. Mr. Muhammad Naseem, the learned counsel of the appellant, has raised the pleas and arguments as also the case-law as under:--
(i) The very show-cause notice is illegal and without jurisdiction since the same having been issued under section 36 of the 1990 Act is vague for want of necessary particulars. The show-cause notice also does not mention as to which category of section 36 the case falls under. Reliance in this regard is placed on Assistant Collector Customs v. Khyber Electric Lamps 2001 SCMR 838; Zamindara Paper and Board Mills (Pvt.) Ltd. v. Collector of Customs, Sales Tax and Central Excise 2003 PTD 1797; Atlas Tyre v. Additional Collector Adjudication 2003 PTD 1593 and Caltex Oil v.
Collector Central Excise 2005 PTD 480.
(ii) The Sales Tax is an indirect tax which means that a registered person is allowed to in build the same in its price; and where the registered person is not entitled to charge the output tax from its customers the charging section contained in section 3 of the 1990 Act would not come into play and hence no sales tax can be imposed. In this regard reliance is placed on Elahi Cotton Mills Ltd. v.
FOP PLD 1997 SC 582; Frontier Ceramics v. Government of Pakistan 1999 PTD 4126 and more pertinently Mayfair Spinning Mills Ltd. v. Customs, Excise and Sales Tax Appellate Tribunal 2006 PTD 340;
(iii) Section 4 of the 1961 Ordinance contains a non-obstante clause whereby the appellant cannot tamper with the pricing structure prescribed by the MOP and charge/pay, sales tax, unless and until the MOP allows it to do so. Accordingly to the appellant this non-obstante clause contained in section 4 of the 1961 Ordinance Act has an overriding effect over the 1990 Act;
(iv) Without prejudice, although the charge of sales tax is introduced through section 3 of the 1990 Act, its playability is dependent upon section 4 of the 1961 Ordinance and through S.R.O. 922(1)/99 dated 16-8-1999 although the chargeability was introduced, the payability of the tax was suspended and only introduced vide S.R.O. (1)/99 dated 23-9-1999 when the MOP had prescribed the pricing structure. For such purpose reliance is placed on Kohinoor Textile v. Federation of Pakistan 2002 PTD 121;
(v) The impugned charge is exproriatory and confiscatory in nature and opposed to the fundamental rights guaranteed under the Constitution. According to the appellant although on one hand the charge is introduced but on the other hand it is not allowed to pass on the burden, which is nothing but an exercise against the fundamental rights, being also unreasonable in nature. This has also subjected the appellant to a situation of loss. For such purpose reliance is placed on Government of Pakistan v. Muhammad Ashraf PLD 1993 SC 176; Elahi Cotton Mills Ltd. v.
FOP PLD 1997 SC 582 and Firdous Spinning and Weaving Mills v. FOP PLD 1984 Karachi 522;
(vi) Since. The petroleum products are sold in pursuance of certain price control regulations there is no "sale" within the meaning of Entry 49 of the Fourth Schedule to the 1973 Constitution, in view whereof there is no question of chargeability or payability of the levy. In this regard reliance is placed on Chhitter Mal Narain Das v. Commissioner of Sales Tax (1970) 3 Supreme Court Cases 809 and State of Tamil Nadu v. Cement Distributors Private Ltd. (1973) 3 SCC 342;
(vii) The facts as above would show that the Tribunal under section 65 of the 1990 Act should give a finding that the sales tax in question is exempt and the government/CBR have erred in exercising this power. For such purpose reliance is placed on the findings given by the Supreme Court in the first round of proceedings in the case i,e, Caltex Oil v. Collector 2005 PTD 480;
(viii) In a similar case a Division Bench of the erstwhile Customs and Sales Tax Tribunal has already accorded relief to the appellant i,e, the case of Caltex Oil v. Collector (unreported) being Central Excise Appeal K-220/04/8015 dated 30-9-2004;
(ix) Item No,S of the sixth schedule to the 1990 Act, which had conferred the exemption was purportedly amended through S.R.O. 922(1)/99 dated 16-8-1999. This was all an illegal exercise_ of power since a statute cannot be amended by a subordinate legislation such as a S.R.O. In this respect attention is invited to CIT v. Kashmir Edible Oil Ltd. 2006 SCMR 109;
(x) The show-cause notice was issued on 25-5-2001, while the order in original was framed on 16- 7-2001. The order-in-original since not having been passed within 45 days of the issuance of the show-cause notice, and no time limit having been extended by the competent authority is barred by limitation'and of no effect in terms of proviso to section 36(3) of the 1990 Act. In this regard attention is invited to Pace International v. Secretary PTCL 2005 CL 836; SS Oil Mills Ltd. v. Secretary GST 2005 CL 592; CST v. Hilal Tanneries PLD 1976 Lah. 655 and Nagina Silk Mills v. ITO PLD 1963 SC 322;
(xi) The requirement of submission of old record of monthly return, inventory records, sales and clearing stock as on 15-9-1999 beyond the period of limitation (five years) in the hearing on 9-1- 2008 was arbitrary, without jurisdiction and barred by limitation;
(xii) The learned Collector Adjudication has erred in not following the DB judgment in the case of Caltex, delivered by the Tribunal is Sales Tax Appeals Nos. 255/2001 and K-309 of 2001 dated 14-6- 2006 levelling the same facts and issues which was binding on subordinate officers and is binding on our Division Bench also, as per PLD 1963 SC 296, PLD 1995 SC 423, 1997 PTD (Trib.) 879. PLD 1963 (W.P.) Kar. 280, PLD 1997 SC 582, (sic) SCMR 1136;
(xiii) The order-in-original contains many points and discussions which are not contained in the show-cause notice as such the entire exercise is void. In this regard attention is invited to Collector v. Rahamdin 1987 SCMR 1840 and Exide Pakistan v. Deputy Collector 2004 PTD 1449;
(xiv) The imposition of additional tax and penalty is also attacked as the matter concerns a genuine interpretation of law and no mala fides-on the part of the appellant are present. For such purpose reliance is placed on DG Khan Cement v. FOP 2004 SCMR 456 and Gandhara Nissan v.
Sales Tax Department and others as per 2004 PTD 2371; ' On the other hand, the learned departmental representative failed to address and rebut any of the above facts, arguments and case-law. We further observe that for the purposes of petroleum products the 1961 Ordinance by virtue of its section 4 will have an overriding effect over the 1990 Act (NB: for the overriding effect of non-obstante clauses, see Elahi Cotton v. FOP PLD 1997 SC 582. This issue was decided by a DB of this Tribunal in CE Appeal No,20 of 2004 dated 30-9-2004. Mrs. Yasmeen Abbasi, Member Judicial as she then was, while authoring the order, was pleased to hold that the appellant's obligation to pay central excise duty on furnace oil began not from the date of notification issued by the CBR but rather from the date of notification issued by MOP. In the present case, due to the inaction of the MOP a corresponding notification to CBR's S.R.O. 922(1)/99 dated 16- 8-1999 was not issued by the MOP till 23-9-1999. In other words, it was only on 23-9-1999 that the MOP had prescribed a price structure notification authorizing the appellant to charge sales tax on furnace oil, while permitting it to pass on the burden to the end consumers. The appellant and other OMCs made a number of representations and it took the MOP more than a month to issue a notification in harmony with S.R.O. 922(I)/99 dated 16-8-1999. This is nothing but sheer negligence and lack of harmony between the two govt. Departments i,e, MOP and CBR. The appellant can hardly be blamed for it or saddled with the responsibility to pay sales tax for the intervening period.
The position otherwise would be patently unjust since on one hand the appellant is obligated to pay sales tax, while on the other hand it is not allowed to pass on the burden of tax to the end consumers, due to the failure of the MOP to prescribe a corresponding price notification. The whole position would be against the spirit of sales tax, which is an indirect tax and the appellant is denied the status of collecting agent of indirect tax. If the interpretation proposed by the department is accepted then sections 7 and 8 of the 1990 Act would be rendered redundant.
10. The show-cause notice was issued on 25-5-2001 and the order-in-original framed on 16-7-2001.
This means that the order-in-original was framed after 45 days from the date of the show-cause notice. In terms of the proviso to section 36(3) of the. 1990 Act the period prescribed at the time of passing of the order-in-original i,e, 16-7-2001 was 45 days. As such the order-in-original is barred by limitation. It is correct that there is a power to grant extension of this time limit. However, the departmental representative has not been able to file any document whereby it could be inferred that time limit had been extended by the competent authority. Equally the learned Additional Collector has fallen into error by ignoring that the time limitation. When order-in-original was passed the limitation period prescribed by the statute was 45 days. The order is thus liable to be annulled on this score alone.
11. Be that as it may, there is yet another fundamental issue in this appeal. On 15-8-1999 item No,8 of the sixth schedule to the 1990 Act had granted exemption to certain POL products. The said exemption was conferred by statue. On 16-8-1999 S.R.O. 922(1)/99 dated 16-8-1999 withdrew the said exemption. One fails to understand how through a subordinate legislation i,e, a notification a statutory provision i,e, item No,8 of the sixth schedule of 1990 Act could be amended or omitted.
Very recently, the Hon'ble Supreme Court in the case of CIT v. Kashmir Edible Oil 2006 SCMR 109 has been pleased to hold that an S.R.O. Cannot bring about an amendment, repeal or omission in the statue. This being a clear S.R.O. 922(I)/99 dated 16-8-1999 purportedly taking away the statutory exemption is of no legal effect it seems that it was only through the Finance Ordinance, 2000 that later an amendment to item No,8 to the sixth schedule of the 1990 Act was introduced. There may be no cavil with regards the amendment made by the Finance Ordinance, 2000 but S.R.O. 922(1)/99 dated 16-8-1999 seeking to amend the law has no legs to stand. As such the very basis of the show-cause notice, which is based upon the said S.R.O., and all subsequent proceedings and orders, became a nullity.
12. The orders of penalty and additional tax are also not sustainable since when the main levy falls the imposition of penalty or additional tax also fails. Even otherwise in the facts and circumstances no mala fides are spelt out on the part of the appellant, who made the payments when the MOP prescribed the notification dated 2-9-1999.
13. The upshot of the above discussion is that the two appeals bearing Nos. 201(K) and 202(K)/2008 are allowed, the two impugned show-cause notices the order-in-original dated 16-7-2001 and orders in First Appeal are annulled and the Bank Guarantee(s), if any, given by the appellant are revoked and withdrawn.