' Captioned above appeals have been filed against order of the Collector (Appeals). The following grounds of appeals have been assailed by the appellant.
"S.T. No,50/K-2009
(1) That the Order-in-Appeal No,18-A dated 16-1-2007 is defective, void and ab-initio rejecting an amount of Rs,38, I 43 which was even not the part of show-cause notice. It is submitted that an amount of Rs,18,959 was rejected through show-cause notice which was further raised to Rs,38,143 by the respondents through order-in-original and order-in-appeal, It is urged that the respondents cannot raise the alleged amount which has not been framed in show cause notice hence the order-in-appeal may be set aside on this ground alone.
(2) That firstly, there is no law under the Sales Tax Act, 1990 under which the refund of the remaining amount of Rs,38,143 could be rejected. The appellate comply all the conditions of Section 10 of the Sales Tax Act, 1990 and therefore the rejection of refund is illegal, mala fide and only a tact for delaying the refund of the appellant on the shelter of STARR programme which is computer information and not a hard company prevailing under the Sales Tax Act, 1990.
(3) That the Refund Rules which prevails under the Sales Tax Act, 1990, there is no provisions under which the refund could be rejected for purported objections "Exceed Declared output and does not exist". It is urged with utmost respect that what has not been required under the law could not be enforced by implication to the appellant. All the documents and conditions are required under the Refund Rules stands complied by the appellant and therefore the order-in-appeal is liable to be set aside.
(4) That the principle of natural justice has not been complied by the respondents No,
1. It is submitted with utmost respect that order-in-appeal is discretely silent on the intelligible information and -has not passed through any provisions of the Sales Tax Act, 1990. The learned Collector (Appeals) has rejected our refund claim on the ground that the appellant do not have Sales Register of Messrs Gugi Industries, Messrs Sana Corporation (Pvt.) Ltd., is still suspended/blacklisted. The Collector (Appeals) shall not appreciate that what is not required under the Sales Tax Act, 1990 cannot be enforced by implication to the appellant to submit the same. It is respectfully submitted that how the appellant could obtain Sales Register from the Supplier as it is under their custody and hence demanding the above documents which is not followed by any provisions of Sales Tax Act, 1990 is illegal hence order-in-appeal rejecting our refund claim on this strength is liable to be set aside.
(5) That it is submitted that the order-in-appeal has not been passed keeping in view with the provisions of Sales Tax Act, 1990. The appellant has submitted the necessary documents i,e, Sales Tax Invoices and Return Challans as required under refund rules under section 10 of the Sales Tax Act, 1990. The Returned Rules which prevails under the Sales Tax Act, 1990, there is no provision under which the refund could be rejected for a purported objection "Does Not Exist and Exceeds Declared output" on the ground that we do not have Sales Register of the supplier. The above purported objections have been followed by STARR programme, which is merely a computer information and not a hard copy followed by the Sales Tax Act, 1990. It is submitted that the appellant has complied the necessary conditions under the provisions of section 10 ibid and therefore the order-in-appeal is liable to be set aside.
(6) Prayers:- That the appellant beg to pray as under:--
(a) That the Order-in-Appeal No,18-A of 2007 dated 16-1-2007 may be set aside.
(b) That the respondents may be directed to pay us compensation for delaying the Refund of our case.
(c) That a general ruling may be issued that for such incorrect and false reasons raised by the respondent No,2 on the basis of STARR programme, which is a conflict between computer information and a hard copy, the Refunds should not be delayed or deferred or rejected.
(d) That the appellant further seek leave of the honourable Tribunal to allow, add, modify, alter and submit further grounds during the proceedings of this appeal.
(e) Any other relief as this honourable Tribunal may deem fit. S.T. No, 75/K-2009
(1) That firstly, there is no law under the Sales Tax Act, 1990 under which the refund of Rs,92,466 could be rejected. The appellant comply all the conditions of section 10 of the Sales Tax Act, 1990 and therefore the rejection of refund is illegal, mala fide and only a tact for delaying the refund of the appellant on the shelter of STARR programme which is computer information and not a hard copy prevailing under the Sales Tax Act, 1990.
(2) That the Refund Rules which prevails under the Sales Tax Act, 1990, there is no provisions under which the refund could be rejected for purported objections "Invoice Summary not submitted, De- registered". It is urged with utmost respect that what has not been required under the law could not be enforced by implication to the appellant. All the documents and conditions are required under the Refund Rules stands complied by the appellant and therefore the order-in-appeal is liable to be set aside.
(3) That the principle of natural justice has not been complied by the respondents No,]. It is submitted with utmost respect that orderin-appeal is discretely silent on the intelligible information and has not passed through judicial mind. The learned Collector (Appeals) has rejected our refund claim on the ground that the appellant failed to meet the requirements of law contained in sections 7 and 10 of the Sales Tax Act, 1990. Although the appellant had filed refund claim on 10-6- 2005 and submitted purchase invoices and proof of payment through bank to the supplier as required under the above provisions of Sales Tax Act, 1990 hence order-in-appeal rejecting our refund claim on this strength is liable to be set aside.
(4) That it is submitted that the order-in-appeal has not been passed keeping in view with the provisions of Sales Tax Act, 1990. The appellant has submitted the necessary documents i,e, Sales Tax Invoices and Return Challans as required under refund rules under section 10 of the Sales Tax Act, 1990. The Returned Rules which prevails under the Sales Tax Act, 1990, there is no provision under which the refund could be rejected for a purported objection "Invoice summary not submitted, De-registered and Duplicate". The said purported objections have been followed by STARR programme, which is merely a computer information and not a hard copy followed by the Sales Tax Act, 1990. It is submitted that the appellant has complied the necessary conditions under the provisions of section 10 ibid and therefore the order-in-appeal is liable to be set aside.
(5) That as earlier urged the appellants may be allowed to add, and submit further grounds during the proceedings of this Appeal.
(6) Prayers:- That the appellant beg to pray as under:-
(a) That the Order-in-Appeal No,208-A of 2007 dated 7-4-2007 may be set aside.
(b) That the respondents may be directed to pay us compensation for delaying the Refund of our case.
(c) That a general ruling may be issued that for such incorrect and false reasons raised by the respondent No,2 on the basis of STARR programme, which is a conflict between computer information and a hard copy, the Refunds should not be delayed or deferred or rejected.
(d) That the appellant further seek leave of the honourable Tribunal to allot add modify, alter and submit further grounds during the proceedings of this appeal.
(e) Any other relief as this honourable Tribunal may deem fit. S.T. No, 78/K-2009
(1) That there is no law under the Sales Tax Act, 1990 under which the refund of Rs,41,917 could be rejected. The appellant comply all the conditions of Section 10 of the Sales Tax Act, 1990 and therefore the rejection of refund is illegal, mala fide and only tact for delaying the refund of the appellant on the shelter of STARR programme, which is computer information and not a hard copy prevailing under the Sales Tax Act, 1990. It is urged with utmost respect that what has not been required under the law could not be enforced by implication to the appellant. All the documents and conditions as required under the Refund Rules stands complied by the appellant and therefore the order-in-appeal is liable to be set aside.
(2) That the principle of natural justice has not been complied by the respondents No, I . It is submitted with utmost respect that order-in-appeal is discretely silent on the intelligible information and has not passed through judicial mind. The learned Collector, (Appeals) has rejected our refund claim on the ground that the appellant failed to meet the requirements of law contained in sections 7 and 10 of the Sales Tax Act, 1990. Although the appellant had filed refund claim on 28-3-2005 and submitted purchase invoices and proof of payment through bank to the supplier as required under the above provisions of Sales Tax Act, 1990 hence order-in-appeal rejecting our refund claim on this strength is liable to be set aside.
(3) That it is submitted that the order-in-appeal has not been passed keeping in view with the provisions of Sales Tax Act, 1990. The appellant has submitted the necessary documents i,e, Sales Tax Invoices and Return Challans as required under refund rules under section 10 of the Sales Tax Act, 1990. The Returned Rules which prevails under the Sales Tax Act, 1990, there is no provision under which the refund could be rejected for a purported objection "Exceed Declared Output, Invoice summary not submitted and Duplicate" followed by STARR programme, which is not even a hard copy prevailing under the Sales Tax Act, the order-in-appeal Is liable to be set aside on this ground alone.
(4) Prayers:- That the appellant beg to pray as under:-
(a) That the Order-in-Appeal No,235 of 2007 dated 14-4-2007 may be set aside and allow the refund claim of Rs,41,917.
(b) That the respondents may be directed to pay us compensation for delaying the Refund of our case.
(c) That a general ruling may be issued that for such incorrect and false reasons raised by the respondent No,2 on the basis of STARR programme, which is a conflict between computer information and a hard copy, the Refunds should not be delayed or deferred or rejected.
(d) That the appellant further seek leave of the honourable Tribunal to allow, add, modify, alter and submit further grounds during the proceedings of this appeal.
(e) Any other relief as this honourable Tribunal may deem fit. S.T. No, 79/K-2009
(1) That there is no law under the Sales Tax Act, 1990 under which the refund of Rs,30,760 could be rejected. The appellant comply all the conditions of section 10 of the Sales Tax Act, 1990 and therefore the rejection of refund is illegal, mala fide and only tact for delaying the refund of the appellant on the shelter of STARR programme which is computer information and not a hard copy prevailing under the Sales Tax Act, 1990. It is urged with utmost respect that what has not been required under the law could not be enforced by implication to the appellant. All the documents and conditions as required under the Refund Rules stand complied by the appellant and therefore the order-inappeal is liable to be set aside.
(2) That the principle of natural justice has not been complied by the respondents No, 1 . It is submitted with utmost respect that orderin-appeal is discretely silent on the intelligible information and has not passed through judicial mind. The learned Collector (Appeals) has rejected our refund claim on the ground that the appellant failed to meet the requirements of law contained in sections 7 and 10 of the Sales Tax Act, 1990. Although the appellant had filed refund claim on 2-12- 2004 and submitted purchase invoices and proof of payment through bank to the supplier as required under the above provisions of Sales Tax Act, 1990 hence order-in-appeal rejecting our refund claim on this strength is liable to be set aside.
(3) That it is submitted that the order-in-appeal has not been passed keeping in view with the provisions of Sales Tax Act, 1990. The appellant has submitted the necessary documents i,e, Sales Tax' Invoices and Return Challans as required under refund rules under section 10 of the Sales Tax Act, 1990. The Returned Rules which prevails under the Sales Tax Act, 1990, there is no provision under which the refund could be rejected for a purported objection "Exceed Declared Output and Non filer", followed by STARR programme, which is not eve a hard copy prevailing under the Sales Tax Act, the order-in-appeal is liable to be set aside on this ground alone.
(4) Prayers:- That the appellant beg to pray as under:-
(a) That the Order-in-Appeal No,237 of 2007 dated 14-4-2007 may be set aside and allow the refund claim of Rs,30,760.
(b) That the respondents may be directed to pay us compensation for delaying the Refund of our case.
(c) That a general ruling may be issued that for such incorrect and false reasons raised by the respondent No,2 on the basis of STARR programme, which is a conflict between computer information and a hard copy, the Refunds should not be delayed or deferred or rejected.
(d) That the appellant further seek leave of the Honourable Tribunal to allow, add, modify, alter and submit further grounds during the proceedings of this appeal.
(e) Any other relief as this Honourable Tribunal may deem fit. S.T. No, 80/K-2009
(1) That firstly, there is no law under the Sales Tax Act, 1990 under which the refund of Rs,92,466 could be rejected. The appellant comply all the conditions of section 10 of the Sales Tax Act, 1990 and therefore the rejection of refund is illegal, mala fide and only tact for delaying the refund of the appellant on the shelter of STARR programme which is computer information and not a hard copy prevailing under the Sales Tax Act, 1990. It is urged with utmost respect that what has not been required under the law could not be enforced by implication to the appellant. All the documents and conditions as required under the Refund Rules stands complied by the appellant and therefore the order-in-appeal is liable to be set aside.
(2) That the principle of natural justice has not been complied by the respondent No,1 . It is submitted with utmost respect that order-in-appeal is discretely silent on the intelligible information and has not passed through judicial mind. The learned Collector (Appeals) has rejected our refund claim on the ground that the appellant failed to meet the requirements of law contained in sections 7 and 10 of the Sales Tax Act, 1990. Although the appellant had filed refund claim on 16-4-2005 and submitted purchase invoices and proof of payment through bank to the supplier as required under the above provisions of Sales Tax Act, 1990 hence order-in-appeal rejecting our refund claim on this strength is liable to be set aside.
(3) That it is submitted that the order-in-appeal has not been passed keeping in view with the provisions of Sales Tax Act, 1990. The appellant has submitted the necessary documents i,e, Sales Tax Invoices and Return Challans as required under refund rules under section 10 of the Sales Tax Act, 1990. The Returned Rules which prevails under the Sales Tax Act, 1990, there is no provision under which the refund could be rejected for a purported objection "Invoice summary not submitted and Exceed Declared Output", followed by STARR programme, which is not eve a hard copy prevailing under the Sales Tax Act, the order-in-appeal is liable to be set aside on this ground alone.
(4) Prayers:- That the appellant beg to pray as under:-
(a) That the Order-in-Appeal No,229 of 2007 dated 14-4-2007 may be set aside and allow the refund claim of Rs,34,805.
(b) That the respondents may be directed to pay us compensation for delaying the Refund of our case.
(c) That a general ruling may be issued that for such incorrect and false reasons raised by the respondent No,2 on the basis of STARR programme, which is a conflict between computer information and a hard copy, the Refunds should not be delayed or deferred or rejected.
(d) That the appellant further seek leave of the honourable Tribunal to allow, add, modify, alter and submit further grounds during the proceedings of this appeal.
(e) Any other relief as this honourable Tribunal may deem fit.
' S.T. No, 81/K-2009
(1) That it is respectfully submitted that the purported objection Registration Suspended" of the supplier was not apprised to the appellant through show cause notice hence the proceedings against the above objection is void, ab-initio and mala fide. The refund was rejected only on the purported objection "Exceed Declared Output" and not on "Registration Suspended" of the supplier hence the order-in-appeal is liable to be set aside on this ground alone.
(2) That there is no law under the Sales Tax Act, 1990 under which the refund of Rs,24,418 could be rejected. The appellant comply all the conditions of section 10 of the Sales Tax Act, 1990 and therefore the rejection of refund is illegal, mala fide and only tact for delaying the refund of the appellant on the shelter of STARR programme which is computer information and not a hard copy prevailing under the Sales Tax Act, 1990. It is urged with utmost respect that what has not been required under the law could not be enforced by implication to the appellant. All the documents and conditions as required under the Refund Rules stand complied by the appellant and therefore the order-inappeal is liable to be set aside.
(3) That the principle of natural justice has not been complied by the respondents No,l. It is submitted with utmost respect that order-in-appeal is discretely silent on the intelligible information and has not passed through judicial mind. The learned Collector (Appeals) has rejected our refund claim on the ground that the appellant failed to meet the requirements of law contained in sections 7 and 10 of the Sales Tax Act, 1990. Although the appellant had filed refund claim on 4-7-2003 and submitted purchase invoices and proof of payment through bank to the supplier as required under the above provisions of Sales Tax Act, 1990 hence order-in-appeal rejecting our refund claim on this strength is liable to be set aside,.
(4) That it is submitted that the order-in-appeal has not been passed keeping in view with the provisions of Sales Tax Act, 1990. The appellant has submitted the necessary documents i,e, Sales Tax Invoices and Return Challans as required under refund rules under section 10 of the Sales Tax Act, 1990. The Returned Rules which prevails under the Sales Tax Act, 1990, there is no provision under which the refund could be rejected for a purported objection "Invoice summary not submitted and Exceed Declared Output", followed by STARR programme, which is not eve a hard copy prevailing under the Sales Tax Act, the order-in-appeal is liable to be set aside on this ground alone.
(5) Prayers:- That the appellant beg to pray as under::-
(a) That the Order-in-Appeal No,234 of 2007 dated 14-4-2007 may be set aside and allow the refund claim of Rs,24,418.
(b) That the respondents may be directed to pay us compensation for delaying the Refund of our case.
(c) That a general ruling may be issued that for such incorrect and false reasons raised by the respondent No,2 on the basis of STARR programme, which is a conflict between computer information and a hard copy, the Refunds should not be delayed or deferred or rejected.
(d) That the appellant further seek leave of the honorable Tribunal to allow, add, modify, alter and submit further grounds during the proceedings of this appeal.
(e) Any other relief as this honorable Tribunal may deem fit. S.T. No, 100/K-2009
(1) That there is no law under the Sales Tax Act, 1990 under which the refund of Rs,28,050 against refund claim No, T-120902105248 and Rs,6,699 against refund claim No, T-121002105260 could be rejected. The appellant comply all the conditions of section 10 of the Sales Tax Act, 1990 and therefore the rejection of refund is illegal, mala fide and only tact for delaying the refund of the appellant on the shelter of STARR programme which is computer information and not a hard copy prevailing under the Sales Tax Act, 1990. It is urged with utmost respect that what has not been required under the law could not be enforced by implication to the appellant. All the documents and conditions as required under the Refund Rules stand complied by the appellant and therefore the order-in-appeal is liable to be set aside.
(2) That the principle of natural justice has not been complied by the respondents No,1 . It is submitted with utmost respect that order-in-appeal is discretely silent on the intelligible information and has not passed through judicial mind. The learned Collector (Appeals) has rejected our refund claim on the ground that the appellant failed to meet the requirements of law contained in sections 7 and 10 of the Sales Tax Act, 1990. Although the appellant had filed refund claim on 28-3-2005 and submitted purchase invoices and proof of payment through bank to the supplier as required under the above provisions of Sales Tax Act, 1990 hence order-in-appeal rejecting our refund claim on this strength is liable to be set aside.
(3) That it is submitted that the order-in-appeal has not been passed keeping in view with the provisions of Sales Tax Act, 1990. The appellant has submitted the necessary documents i,e, Sales Tax Invoices and Return Challans as required under refund rules under section 10 of the Sales Tax Act, 1990. The Returned Rules which prevails under the Sales Tax Act, 1990, there is no provision under which the refund could be rejected for a purported objection "Exceed declared Output", followed by STARR programme, which is not eve a hard copy prevailing under the Sales Tax Act, the order-in-appeal is liable to be set aside on this ground alone.
(4) Prayers:- That the appellant beg to pray as under:-
(a) That the Order-in-Appeal No,360 of 2007 dated 29-5-2007 may be set aside and allow the refund claim of Rs,28,050 against refund claim No, T-120902105248 and mutatis mutandis in appellant's other 01 (one) refund claim of Rs,6,699 against refund claim receipt No, T-121002105260 rejected through the above said order-in-appeal.
(b) That the respondents may be directed to pay us compensation for delaying the Refund of our case.
(c) That a general ruling may be issued that for such incorrect and false reasons raised by the respondent No,2 on the basis of STARR programme, which is a conflict between computer information and a hard copy, the Refunds should not be delayed or deferred or rejected.
(d) That the appellant further seek leave of the honourable Tribunal to allow, add, modify, alter and submit further grounds during the proceedings of this appeal.
(e) Any other relief as this honourable Tribunal may deem fit. S.T. No, 101/K-2009
(1) That the proceedings in this case may he set aside on the ground that the adjudged amount tuned in the Show-cause Notice is Rs,43,281, which was further raised to Rs,98,726 through Order- in-Original No, 214 of 2007 dated 30-12-2006 without meeting the ends of justice hence enhancing the adjudged amount from Rs,43,281 to Rs, 98, 726 is null, void and ab-initio.
' Therefore, order-in-appeal is liable, to be set aside on this ground alone.
(2) That there is no law under the Sales Tax Act, 1990 under which the refund of Rs,98,726 against refund claim No, T-120702105224 and Rs,20,496 against refund claim No, T-120403105292 could be rejected. The appellant comply all the conditions of section 10 of the Sales Tax Act, 1990 and therefore the rejection of refund is illegal, mala fide and only tact for delaying the refund of the appellant on the shelter of STARR programme which is computer information and not a hard copy prevailing under the Sales Tax Act, 1990. It is urged with utmost respect that what has not been required under the law could not be enforced by implication to the appellant. All the documents and conditions as required under the Refund Rules stands complied by the appellant and therefore the order-in-appeal is liable to be set aside.
(3) That the principle of natural justice has not been complied by the respondents No,
1. It is submitted with utmost respect that orderin-appeal is discretely silent on the intelligible information and has not passed through our mind. The learned Collector (Appeals) has rejected our refund claim on the ground that the appellant failed to meet the requirements of law contained in sections 7 and 10 of the Sales Tax Act, 1990. Although the appellant had filed refund claim on 28-3- 2005 and submitted purchase invoices and proof of payment through bank to the supplier as required under the above provisions of Sales Tax Act, 1990 hence order-in-appeal rejecting our refund claim on this strength is liable to be set aside.
(4) That it is submitted that the order-in-appeal has not been passed keeping in view with the provisions of Sales Tax Act, 1990. The appellant has submitted the necessary documents i,e, Sales Tax Invoices and. Return Challans as required under refund rules under section 1Q of the Sales Tax Act, 1990. The Returned Rules which prevails under the Sales Tax Act, 1990, there is no provision under which the refund could be rejected for a purported objection "Does Not Exist and Non-Filer", followed by STARR programme, which is not eve a hard copy prevailing under the Sales Tax Act, the order-in-appeal is liable to be set aside on this ground alone.
(5) Prayers:- That the appellant beg to pray as under:-
(a) That the Order-in-Appeal No,361 of 2007 dated 29-5-2007 may be set aside and allow the refund claim of Rs,98,726 against refund claim No, T-120702105224 and mutatis mutandis in appellant's other 02 (two) refund claim of Rs,20,496 against refund claim receipt No, T- 120413105292 and T-120703100504 rejected through the above said order-in-appeal.
(b) That the respondents may be directed to pay us compensation for delaying the Refund of our case.
(c) That a general ruling may be issued that for such incorrect and false reasons raised by the respondent No,2 on the basis of STARR programme, which is a conflict between computer information and a hard copy, the Refunds should not be delayed or deferred or rejected.
(d) That the appellant further seek leave of the Honourable Tribunal to add, modify, alter and submit further grounds during the proceedings of this appeal.
(e) Any other relief as this Honourable Tribunal may deem fit."
2. Vie appellant through Miscellaneous Applications has also filed additional grounds, of appeals and prayed for raising these additional grounds of appeals. As the all these grounds go to the very roots of the case therefore, the applicant is permitted- to raise these additional grounds of appeals. This order will dispose of appeals as well as Miscellaneous Applications for additional grounds as all these appeals arise out of almost identical facts and involved common questions of law. First we take up the Miscellaneous Applications for Additional Grounds. The additional grounds taken by the appellant are as under: "M.A (AG) 53/KB/2012
(a) Whether the show cause notice issued by the respondent No,2 is barred by limitation under Rule 8 of S.R.O. 575(1)/2002 dated 31-8-2002, whereas the period of the claim is November, 2002 and the show cause notice has been issued on 17-5-2006?
(b) Whether the impugned Order-in-Original No,107 of 2008 dated 24-8-2006 could travel beyond the show cause notice whereas as per impugned order the amount adjudicated/rejected was Rs,38,143 as against the alleged amount of Rs,18,959 appearing in show cause notice hence the whole proceedings in the case become infructuous under the law?
(c) Whether the objections contained in the impugned order followed by show cause notice as "Exceed Declared output, does not exist/registration suspended" of the supplier is tenable under the law and supported by the legislative provisions of S.R.O. 575(I)/2002 dated 31-8-2002, whereas the law does not empower the respondents to give such objections or to process the refund claim through STARR as per impugned order and rejected the refunds on strength of above purported grounds?
(d) Whether without prejudice to above, the appellant was jointly responsible under the law in the years 2002 and 2003, on which section 8A of the Sales Tax Act. 1990 has been added in the legislature through Finance Act, 2006 and have prospective effect?
(e) Whether the respondent No,2 has rightly passed the impugned order without taking into consideration that the suppliers Messrs Gigi Industries (Pvt.) Limited, is in active taxpayers list issued by the Federal Board of Revenue appearing in their official website?
Whether the respondents No,2 has been justified to reject the claims, whereas, the supplier Messrs Sana Creation (Pvt.) Limited was duly active at the time of making taxable supplies to the appellant and on the basis of which the input tax was claimed?
(g) Whether the respondents No,3, before passing the impugned order-in-original, has duly investigated and verified judicially that the government revenue of Rs, 38,343 being input tax, which was claimed by the appellant has been deposited in the government treasury?
(h) Whether the respondent No,2 has discharged the huge burden under Article 117 of the Qanun- e-Shahadat Order, -1984 to prove that the invoices issued by Messrs Gigi Industries (Pvt.) Limited and Sana Creation (Pvt.) Limited are fake and not genuine on the basis of which the input tax was claimed by the appellants?
M.A (AG) 54/KB/2012
(a) Whether the show cause notice issued by the respondent No,2 is barred by limitation under Rule 8 of S.R.O. 575(1)/2002 dated 31-8-2002, whereas the period of the claim is April, 2005 and the show cause notice has been issued on 17-5-2006?
(b) Whether the objections contained in the impugned order followed by show cause notice as "De-registered, Invoice Summary. Not submitted" of the supplier is tenable under the law and supported by the legislative provisions of S.R.O. 575(1)/2002 dated 31-8-2002, whereas the law does not empower the respondents to give such objections or to process the refund claim through STARR as per impugned order and reject the refunds on strength of above purported grounds?
(c) Whether without prejudice to above, the appellant was jointly responsible under the law in the years 2002 and 2003, on which section 8A of the Sales Tax Act, 1990 has been added in the legislature through Finance Act, 2006 and have prospective effect?
(d) Whether the respondent No,2 has rightly passed the impugned order without taking into consideration that the suppliers M/s. Unicorn International (Pvt.) Limited, Latif Cotton Mills Limited, New Prestige Packages, Mushtaq and Sons, Al-moiz International, F&Z enterprises are in active taxpayers list issued by the Federal Board of Revenue appearing in their official website?
(e) Whether the respondents No,2 have been justified to reject the claims, whereas, the suppliers were duly active at the time of making taxable supplies to the appellant and on the basis of which the input tax was claimed?
(f) Whether the respondents No,3, before passing the impugned order-in-original, has duly investigated and verified judicially that the government revenue of Rs,92,466 being input tax, which was claimed by the appellant has been deposited in the government treasury?
(g) Whether the respondent No,2 has discharged the huge burden under Article 117 of the Qanun- e-Shahadat Order, 1984 to prove that the invoices issued by said suppliers are fake and not genuine on the basis of which the input tax was claimed by the appellants?
' M.A (AG) 55/KB/2012
(a) Whether the show cause notice issued by the respondent No,2 is barred by limitation under Rule 8 of S.R.O. 575(1)12002 dated 31-8-2002, whereas the period of the claim is December, 2004 and the show cause notice has been issued on'17-5-2006?
(b) Whether the objections contained in the impugned order followed by show cause notice as "Exceed declared output, Invoice summary not submitted and Duplicate" of the supplier is tenable under the law and supported by the legislative provisions of S.R.O. 575(1)12002 dated 31-8-2002, whereas the law does not empower the respondents to give such objections or to process the refund claim through STARR as per impugned order and reject the refunds on strength of above purported grounds?
(c) Whether without prejudice to above, the appellant was jointly responsible under the law in the year 2004, on which section 8A of the Sales Tax Act, 1990 has been added in the legislature through Finance Act, 2006 and have prospective effect?
(d) Whether the respondents No,2 have been justified to reject the claims, whereas, the suppliers were duly active at the time of making taxable supplies to the appellant and on the basis of which the input tax was claimed?
(e) Whether the respondents No,3, before passing the impugned Order-in-original, has duly investigated and verified judicially that the government revenue of Rs,41,917 being input tax, which was claimed by the appellant has been deposited, in the government treasury?
(f) Whether the respondent No,2 has discharged the huge burden under Article 117 of the Qanun-e- Shahadat Order, 1984 to prove that the invoices issued by said suppliers are fake and not genuine on the basis of which the input tax was claimed by the appellants?
' M.A (AG) 56/KB/2012
(a) Whether the show cause notice issued by the respondent No,2 is barred by limitation under Rule 8 of S.R.O. 575(1)/2002 dated 31-8-2002, whereas the period of the claim is May, 2002 and the show cause notice has been issued on 17-5-2006?
(b) Whether the objections contained in the impugned order followed by show cause notice as "Invoice summary not submitted and. Exceed declared output" of the supplier is tenable under the law and supported by the legislative provisions of S.R.O. 575(1)12002 dated 31-8-2002, whereas the law does not empower the respondents to give such objections or to process the refund claim through STARR as per impugned order and reject the refunds on strength of above purported grounds?
(c) Whether without prejudice to above, the appellant was jointly responsible under the law in the year 2005, on which section 8A of the Sales Tax Act, 1990 has been added in the legislature through Finance Act, 2006 and have prospective effect?
(d) Whether the respondents No,2 has been justified to reject the claims, whereas, the suppliers were duly active at the time of making taxable supplies to the 'appellant and on the basis\of which the input tax was claimed?
(e) Whether the respondents No,3, before passing the impugned order-in-original, has duly investigated and verified judicially that the government revenue of Rs,34,805 being input tax, which was claimed by the appellant has been deposited in the government treasury?
' Whether the respondent No,2 has discharged the huge burden under Article 117 of the Qanun-e- Shahadat Order, 1984 to prove that the invoices issued by said supplier is fake and not genuine on the basis of which the input tax was claimed by the appellants?
' M.A (AG) 57/KB/2012
(a) Whether the show cause notice issued by the respondent No,2 is barred by limitation under Rule 8 of S.R.O. 575(1)12002 dated 31-8-2002, whereas the period of the claim is August, 2004 and the show cause notice has been issued on 17-5-2006?
(b) Whether the objections contained in the impugned order followed by show cause notice as "Exceed declared output" of the supplier is tenable under the law and supported by the legislative provisions of S.R.O. 575(1)12002 dated 31-8-2002, whereas the law does not empower the respondents to give such objections or to process the refund claim through STARR as per impugned order and reject the refunds on strength of above purported grounds?
(c) Whether without prejudice to above, the appellant was jointly responsible under the law in the year 2004, on which section 8A of the Sales Tax Act, 1990 has been added in the legislature through Finance Act, 2006 and have prospective effect?
(d) Whether the respondents No,2 has been justified to reject the claims, whereas, the suppliers were duly active at the time of making taxable supplies to the appellant and on the basis of which the input tax was claimed?
(e) Whether the respondents No,3, before passing the impugned order-in-original, has duly investigated and verified judicially that the government revenue of Rs,30,760 being input tax, which, was claimed by the appellant has been deposited in the government treasury?
(f) Whether the respondent No,2 has discharged the huge burden under Article 117 of the Qanun-e- Shahadat Order, 1984 to prove that the invoices issued by said supplier is fake and not genuine on the basis of which the input tax was claimed by the appellants?
' M.A (AG) 58/KB/2012
(a) Whether the show cause notice issued by the respondent No,2 is barred by limitation under Rule 8 of S.R.O. 575(1)/2002 dated 31-8-2002, whereas the period of the claim is May, 2002 and the show cause notice has been issued on 17-5-2006?
(b) Whether the objections contained in the impugned order followed by show cause notice as "Exceed declared output and Registration suspended" of the supplier is tenable under the law and supported by the legislative provisions of S.R.O. 575(1)/2002 dated 31-8-2002, whereas the law does not empower the respondents to give such objections or to process the refund claim through STARR as per impugned order and reject the refunds on strength of above purported grounds?
(c) Whether without prejudice to above, the appellant was jointly responsible under the law in the year 2002, on which section 8A of the Sales Tax Act, 1990 has been added in the legislature through Finance Act, 2006 and have prospective effect?
(d) Whether the respondents No,2 has been justified to reject the claims, whereas, the suppliers were duly active at the time of making taxable supplies to the appellant and on the basis of which the input tax was claimed?
(e) Whether the respondents No,3, before passing the impugned order-in-original, has duly investigated and verified judicially that the government revenue of Rs,24,418 being input tax, which was claimed by the appellant has been deposited in the government treasury?
' Whether the respondent No,2 has discharged the huge burden under Article 117 of the Qanun-e- Shahadat Order, 1984 to prove that the invoices issued by said supplier is fake and not genuine on the basis of which the input tax was claimed by the appellants?
' M.A (AG) 59/KB/2012
(b) Whether the show cause notice issued by the respondent No,2 is barred by limitation under Rule 8 of S.R.O. 575(1)/2002 dated 31-8-2002, whereas the period of the claim is April, 2005 and the show cause notice has been issued on 17-5-2006?
(c) Whether the objections contained in the impugned order followed by show cause notice as "Exceed declared output" of the supplier is tenable under the law and supported by the legislative provisions of S.R.O. 575(1)/2002 dated 31-8-2002, whereas the law does not empower the respondents to give such objections or to process the refund claim through STARR as per impugned order and reject the refunds on strength of above purported grounds?
(d) Whether without prejudice to above, the appellant was jointly responsible under the law in the year 2002, on which section 8A of the Sales Tax Act, 1990 has been added in the legislature through Finance Act, 2006 and have prospective effect?
(e) Whether the respondent No,2 has rightly passed the impugned order without taking into consideration that the suppliers are in active taxpayers list issued by the Federal Board of Revenue appearing in their official website?
(f) Whether the respondents No,2 has been justified to reject the claims, whereas, the suppliers were duly active at the time of making taxable supplies to the appellant' and on the basis of which the input tax was claimed?
(g) Whether the respondents No,3, before passing the impugned order-in-original, has duly investigated and verified judicially that the government revenue of Rs,28,050 and 6,699 being input tax, which was claimed by the appellant has been deposited in the government treasury?
(h) Whether the respondent No,2 has discharged the huge burden under Article 117 of the Qanun- e-Shahadat Order, 1984 to prove that the invoices issued by said supplier is fake and not genuine on the basis of which the input tax was claimed by the appellants?
' M.A (AG) 60/KB/2012
(a) Whether the show cause notice issued by the respondent No,2 is barred by limitation under Rule 8 of S.R.O. 575(1)/2002 dated 31-8-2002, whereas the period of the claim is April, 2005 and the show cause notice has been issued on 2-12-2006?
(b) Whether the impugned Order-in-Original No,214 of 2006 dated 30-12-2006 could travel beyond the show cause notice whereas as per impugned order the amount adjudicated/rejected was Rs, 98.726 as against the alleged amount of Rs,43,281 appearing in show-cause notice No, T- 120702105224/4346 hence the whole proceedings in the case become infructuous under the law?
' Whether the objections contained in the impugned order followed by show cause notice as "Does not exist and non filer" of the supplier is tenable under the law and supported by the legislative provisions of S.R.O. 575(1)/2002 dated 31-8-2002. Whereas the law does not empower the respondents to give such objections or to process the refund claim through STARR as per impugned order and rejected the refunds on strength of above purported grounds?
(d) Whether without prejudice to above, the appellant was jointly responsible under the law in the year 2002, on which section 8A of the Sales Tax Act, 1990 has been added in the legislature through Finance Act, 2006 and have prospective effect?
(e) Whether the respondent No,2 has rightly passed the impugned order without taking into consideration that the suppliers are in active taxpayers list issued by the Federal Board of Revenue appearing in their official website?
(f) Whether the respondent No,2 has been justified to reject the claims, whereas, the supplier was duly active at the time of making taxable supplies to the appellant and on the basis of which the input tax was claimed?
(g) Whether the respondents No,3, before passing the impugned order-in-original, has duly investigated and verified judicially that the government revenue of Rs, 98, 726, Rs,9,114 and Rs, 11,382 being input tax, which was claimed by the appellant has been deposited in the government treasury?
(h) Whether the respondent No,2 has discharged the huge burden under Article 117 of the Qanun- e-Shahadat Order, 1984 to prove that the invoices issued by Messrs Gigi Industries (Pvt.) Limited and Sana Creation (Pvt.) Limited are fake and not genuine on the basis of which the input tax was claimed by the appellants?"
2. Brief facts are that appellant has filed claims of refunds for various periods. Show-cause notices were issued under Rule 8 of S.R.O. No, 575(1)/2002 dated 31-8-2002 whereby the claim of the appellant were rejected on the basis of STARR objections like Exceed declared output , Invoice Summary not submitted and Duplicate" of the supplier. Being aggrieved and dissatisfied with the order of the adjudicating officer the appellant preferred appeals before the learned Collector (Appeals) who dismissed the appeals hence, instant appeals as well as Miscellaneous Applications for Additional Grounds have been filed by the appellant before this Tribunal.
3. At the very outset, Mr. !Oat lmran, Advocate appearing on behalf of the appellant vehemently argued that the Show-cause Notices issued under Rule 8 of S.R.O. No, 575(1)/2002 dated 31-8-2002 are time barred as Fourteen days time has been prescribed for issuing notice. However in the instant case the period of the claim November, 2002, April, 2005, December.
2004. May, 2002, August 2004, May, 2002, April, 2005 and April. 2005 and show-cause notices were issued on 17-5-2006, 17-5-2006, 17-5-2006, 17-5-2006, 17-5-2006, 17-5-2006, 17-5-2006 and 2-12- 2006 respectively, hence the show-cause notices are time barred and the very basis on which the impugned orders have been based are ab initio void, illegal and without jurisdiction. In support of his arguments he placed reliance on the judgment of the Tribunal reported as 2012 PTD 34.
4. The learned counsel for the appellant further argued that the impugned Order No,107 of 2006 dated 24-8-2006 and Order-in-Original No,214 of 2006 dated 30-12-2006 travelled beyond the show cause notices whereas as per the impugned orders the amounts were Rs,38,143 and Rs,98,726 as against the alleged amount of Rs,18,959 and Rs,43,281 respectively appearing in the show cause notices. He, therefore, submitted that whole proceedings and impugned orders framed are not maintainable on the basis of this discrepancy.
5. It was further argued by the learned counsel that refund claim was rejected by the Officer on the ground that suppliers Messrs Gigi Industries (Pvt.) Ltd., Messrs Sana Creation (Pvt.) Ltd. Messrs Unicorn International (Pvt.) Ltd., Latif Cotton Mills Limited, New Prestige Packages, Mushtaq and Sons, Al-moiz International, and F&Z Enterprises were duly active and their names are appearing in the list of official website of FBR, hence the allegations that the supplier were inactive was based on presumption and input that invoices were genuine. He further submitted that as per section 8A of the Sales Tax Act, 1990 the Revenue should issue the notices to the suppliers and not to the appellant a this having not been done so non-issuance of notices to the supplier tantamount to miscarriage of justice and nonfulfillment of this condition the impugned orders are liable to be cancelled.
6. He further argued that under the Qanun-e-Shahadat Order, 1984 heavy duties cast upon the Revenue to prove that the invoices issued by the suppliers are fake and not genuine on the basis of which the input tax was claimed by the appellant. He, therefore, prayed for cancellation of the impugned orders.
7. The learned D.R. On the other hand, supported the orders of the officers below. He submitted that refund claims were rejected as the appellant has not filed invoice summary and the suppliers of the appellant were blocked due to issuing huge amounts invoices but nominal amount of sales tax in Govt. Exchequer. He further submitted that there is no time limit under subsection (4) of section 10 of the Sales Tax Act.
8. We have heard the learned representatives of both the sides and have gone through the record of the case as well as case-law cited at bar.
9. From perusal of the record it reveals that the proceedings in this case were initiated by issuing show cause notices under S.R.O. No,575(0/2002 dated 31-8-2002. For the sake of facility the some excerpts from the said S.R.O. Are reproduced as under:-- "(2) The processing officer shall submit a written comprehensive refund examination report within seven days of receipt of supportive documents to the concerned senior auditor or superintendent who shall give his conclusive recommendations thereon and pass it on to the officer-in-charge within three days of receipt of the case from the processing officer.
(4) Where the officer-in-charge is of opinion that any further inquiry or audit is required to establish the genuineness and admissibility of the claim or otherwise, he may make or cause to be made such inquiry or audit after approval from the Additional Collector under intimation to the refund claimant.
(8) In case any refund claim or part thereof is found not genuine and not admissible under the law, a notice shall be served on the claimant requiring him to show cause in writing, within fourteen days, as to why the claim or as the case may be, part thereof should not be rejected and as to why the claimant should not be proceeded against under the relevant provisions of law."
10. From a careful reading of the above said relevant extracts from the S.R.O. Clearly shows that under Rule(2). After filing of refund claim it is the duty of the processing officer shall submit a written comprehensive refund examination report within seven days of the receipt of supportive documents to the concerned senior auditor or superintendent who shall give his conclusive recommendations thereon and pass it on to the officer-in-charge within three days of receipt of the case from the processing officer. The second step provided under Rule 4 of the Said S.R.O. Is that where the officer-in-charge is of opinion that any further inquiry or audit is required to establish the genunieness and admissibility of the claim or otherwise, he may make or cause to be made such inquiry or audit after approval from the Additional Collector under intimation to the refund claimant. Perusal of the record shows that no such steps have been taken by the adjudicating officer hence instructions given in the said S.R.O. Have not been followed. We have also noted that after filing of refund claims no objection has been communicated to the appellant within the time prescribed under the rules. After lapse of more than two years to four years show-cause notices were issued which are beyond the stipulated time of fourteen days. Under the similar circumstances and facts obtaining the Tribunal in its judgment reported as 2012 PTD (Trib.) 34 has held issuance of show-cause notice invalid and all the proceedings taken thereof had no legal effect as against the taxpayer. It is also found by us that in some cases the amounts shown in the show-cause notices are different from those which were mentioned in the impugned orders. It has been held in numerous cases that when the law requires a thing to be done in a particular manner, it would be legal and valid only if it was done in the manner and not otherwise. Reliance is placed on the case-law reported as 2005 MLD 1329. In view of these material discrepancies the impugned orders are not sustainable in the eyes of law.
Therefore, the impugned orders of the Collector (Appeals) are vacated and the Adju4icating Authority / DCIR is directed to issue refunds as per law.
11. Consequently, all the eight Miscellaneous Applications and appeals stand disposed of as above.