ABID AZIZ SHEIKH, J. - This judgment will dispose of Customs Appeal No. 22 of 1997 and Customs Appeal No. 23-of 1997 as both appeals having the same grievance, identical questions of law and facts and against the same impugned order, therefore, we intend to decide both these appeals through this judgment.
2. The appellant has filed two separate custom appeals before this Court. Appeal No. 22 of 1997 is filed under Section 47 of the Sales Tax Act, 1990, whereas the other Appeal No. 23 of 1997 is filed under Section 36-C of Central Excise Act, 1944, against the same impugned order dated 14.10.1997 passed in Appeal No. 414 of 1997 by Customs, Excise and Sales Tax Appellate Tribunal, Lahore, (here-in-after referred to as Tribunal) whereby recovery of Principal Amount of Excise duty and Sales Tax of Rs. 170,16,758.11 against the appellant was upheld and amount of additional duty, additional tax, surcharge and penalties of Rs. 275,10098.82 was remitted by the Tribunal.
3. Brief facts of the case which are common in both these appeals are that the respondent- department pursuant to a specific information scrutinized appellants' record for the period of July 1991 to June 1994 which revealed that the appellant during the said period cleared and removed 21,222,676 (MT) of aluminum backed paper board without payment of Central Excise Duty and Sales Tax. The appellant was alleged to have evaded Central Excise Duty amounting to Rs.
1,37,55,049.41 and Sales Tax amounting to Rs. 32.61,708.70 and accordingly, served with Show-Cause notice dated 21.01.1997, charged with contravention of Sections 3, 3-B and 4(1) of the Central Excise Act 1944 and Rules 9, 47, 52, 52-A, 53, 54, 55, 174, and 226 punishable under Rule 210 of the Central Excise Rules, 1944. The appellant was also charged with Sections 3, 6, 34 and 36 punishable under Section 33 of Sales Tax Act, 1990. The Additional Collector of Central Excise-I, Lahore while adjudicating the case on 6.6.1997 ordered payment of Central Excise duty amounting to Rs.
1,37,55,049.41 and Sales tax amounting to Rs. 32,61,708.70 alongwith additional duty, additional tax and surcharge of Rs. 27510098.82. The aforesaid order was upheld by the Collector Appeals vide order dated 29.7.1997. The matter finally come up before the Tribunal where vide impugned order dated 14.10.1997 the penalty of additional tax and surcharge of Rs. 27510098.82 was remitted for reason that appellant has already paid the entire principal amount without resistance. The appellant has challenged the vires of the order dated 14.10.1997 passed by the tribunal to the extent of recovery of Sales Tax in Appeal No. 22 of 1997 and to the extent of Central Excise duty in Appeal No. 23 of 1997.
4. Preliminary objection was raised by learned counsel for the respondents that the appeals are not maintainable as no formal questions of law are framed in these appeals arising put of impugned order. The learned counsel for the appellant in response argued that as per provisions of Section 47 of the Sales Tax Act, 1990 and Section 36-C of the Central Excise Act, 1944 read with Order 41, Rule 1, CPC there is no need to frame question of law and the grounds raised in these appeals, can be treated as question of law. Reliance is placed on Province of Punjab through Collector, Sialkot and 4 others v. Muhammad Sharif (PLD 1990 Lahore 208) and Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690). On merits the learned counsel for the appellant argued, that there was no allegation of mis-declaration, false information, collusion or deliberate act against the appellant hence Show- Cause notice and recovery of Sales Tax was time-barred under Section 36 of the Sales Tax Act and Rule 10 of the Central Excise Rules, 1944. Reliance is placed on the cases of Messrs Dewan. Cement Ltd. v. Collector of Customs and Sales Tax and another (2009 SCMR 1126), D.G. Khan Cement Company Ltd. v. The Collector of Customs, Sales Tax and Central Excise, Multan and two others (PTCL 2003 (CL) 362) and Assistant Collector Customs and others v. Messrs Khyber Electric Lamps and 3 others (2001 SCMR 838). It is further argued that notice was not issued by the competent authority.
5. The learned counsel for the respondents raised preliminary objection regarding the maintainability of these appeals on the ground that petition is not filed by authorized person and no questions of law arising out of impugned order are framed, therefore, this appeal is not maintainable. It is further argued that Show-Cause Notice dated 21.1.1997 is self-explanatory, and shows that appellant was charged with allegation of mis-declaration and deliberate act under various provisions of Sales Tax Act, 1990 and Central Excise Act, 1944, therefore, the notices were not only within time but were also substantial compliance of law. Reliance is placed on the cases of Commissioner Inland Revenue, Legal Division, Bahawalpur v. Zulfiqar Ali (2012 PTD 964), Commissioner of Income Tax/Wealth Tax, Multan Zone v. Muhammad Rafi, Medical Officer, D.H.Q.
Khanewal (2007 PTD 333) and Collector of Sales Tax and Central Excise, Lahore v. Zamidara Paper and Board Mills and others (2008 SCMR 615).
6. We have heard the learned counsel for the parties and also perused the record with their able assistance.
7. First of all we intend to dilate upon the preliminary objection of maintainability of these appeals in absence of questions of law arising out of the impugned order passed by the Tribunal.
8. In order to determine whether appeals are maintainable in absence of questions of law arising out of impugned order. It may be expedient to reproduce Section 47(1) of the Sales Tax Act, 1990 and Section 36C of Central Excise Act, 1944.
Section 47 of the Sales Tax Act, 1990, prior to amendment in 2005 is reproduced hereunder:--- "47. Appeal to the High Court.-(1) An appeal shall lie to the High Court in respect of any question of law arising out of an order under Section 46."
Section 36C of the Central Excise Act, 1944, is reproduced here under:- "36C. Appeal to High Court.-(1) 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 35C."
9. Bare perusal of Sections (supra) shows appeal can only be filed in respect of question of law arising out of the impugned order. The purpose of appeals before this Court under aforesaid provisions are not to get a decision for or against a party rather it is only for resolution of problematic or debatable legal question arising out of the order of the Tribunal. At this stage it is also expedient to see the relevant similar provisions of Section 133 of the Income Tax Ordinance provides that reference can be filed before High Court on the question of law arising out of the order passed by the Appellate Tribunal. The learned Division Bench of this Court in 2012 PTD 946 regarding Section 133(4) of Income Tax Ordinance, 2001 held as under:- "It is pertinent to mention that jurisdiction of this Court in terms of Section 133(4) of the Ordinance ibid is of advisory nature clearly distinct and distinguishable from its appellate or revisional jurisdiction. The purpose of reference therefore should be only to resolve problematic and debatable legal question instead to get a decision for or against a party, In this Reference question raised by the Department appears to be point of law which could not be equated with the expression question of law. The object of the Reference before this Court under Section 133(4) of the Ordinance ibid remains that an affirmative or negative reply to a question referred to this Court should furnish guidance to the parties for useful, comfortable and effective assessment proceedings on substantial legal issues of general interest. Certainly general practice on the part of the Department or the assessee to convert the factual controversy into legal issues not falling within the purview of the question of law cannot be approved at all. Reliance is made upon, (i) The Lungla (Sylhet) Tea Co. Ltd. v. Commissioner of Income Tax C.l.T.AV.T. (1970 SCMR 372."
10. The learned Division Bench of this Court in the case of Commissioner of Income Tax/Wealth Tax, Multan Zone v. Muhammad Rafi, Medical Officer, D.H.Q., Khanewal (2007 PTD 333> held as under:- "We have discussed the issue at length in the light of the judgment of the Supreme Court of Pakistan in re: The Lungla (Sylhet), Tea Co. Ltd. v. Commissioner of Income Tax, Dacca Circle, Dacca (1970 SCMR 372). The Honourable apex Court in that case held that every question of law need not be referred to the High Court and that only a question having some substance needed to be so referred. A portion of our opinion reads as under:- "It has been our experience that the revenue in case of an adverse decision invariably goes for an application for reference to this Court and is generally well obliged by the Tribunal. The revenue, the assessee as well as the Tribunal need to understand the precise nature of the jurisdiction of this Court as also the purpose for which it has been conferred. Without an iota of doubt this jurisdiction is advisory In nature and is required to be invoked only when the issues , raised before and decided by the Tribunal were of substantial nature and of general application , to a sizeable class of assessee. The nature of .w- jurisdiction of this Court > is clearly distinguishable from its appellate or the .Revisional jurisdiction. The mo3t important difference which needs to be noted is that during the pendency of a reference the appeal before the Tribunal is deemed pending and in case the view adopted by the Tribunal is varied it is again listed before them and then decided in the light of opinion expressed by this Court. The purpose of reference is not to get a decision for or against a party before the Tribunal. It is only the resolution of a problematic or debatable legal question, In re: CIT v. Basanta Kumar Agrawalla (1983) 140 ITR 418, their Lordships expressed the view that "a point of law" could not be equated with the expression "question of law" and that the question referred must be a disputed or disputable question of law."
11. The Honourable Supreme Court in the case of Collector of Customs and others v. Tahir Dawood and others (2005 PTD 1988) regarding Section 196 of the Customs Act, 1969 held that High Court rightly concluded that as no substantial question of law was involved in these petitions as required by Section 196 of the Customs Act, therefore the appeals were rightly dismissed.
2. Admittedly the appellant has not framed any question of law arising out of impugned order in these appeals for our advice which render these appeals not maintainable on this ground alone.
The provision of Order 41, Rule 1, CPG and case-law relied upon are not applicable to these appeals.
Notwithstanding the fact that no question of law was framed, we could not help noticing that even the grounds raised in these appeals are not arising out of the impugned order dated 14.10.1997.
Before the Tribunal instead of arguing the case on question of limitation .Against Show-Cause notice, the appellant deposited the principal amount of Rs. 170,16,758.11 and requested that penalties of Rs. 275,10,098.82 may be remitted. The relevant paras (6, 9 and 10) of the impugned order dated 14.1 Q. 1997 are reproduced hereunder:- "The learned counsel pleads that as the principal amounts of excise duty and sales tax (Rs.
1,70,16,758.11) adjudged at the original stage were promptly paid by his clients in pursuance of the directions of the Tribunal and the Department has failed to establish the so-called charge of mis-: declaration in a convincing and logical manner and retention of penalty or for that matter the demand for additional duty, additional tax and surcharge would hardly be justified or warranted in the given circumstances. He therefore, requests that all these penalties be remitted so, that the appellants are spared of the embarrassment and disrepute to which they have un-necessarily been subject."
"We .Have seen the case-record, heard both sides in detail and consulted the relevant provisions of law and rules. We very sincerely feel that as the principal amounts of central excise duty and sates tax adjudged against them have been paid without showing the least resistance or reluctance and the learned counsel frankly admits that the said escaped amount of duty and taxes were definitely due from them to the national exchequer and the Department has not been able to establish that they had wilfully mis-declared or mis-represented the facts the retention of penalty of Rs.
2,75,10,098.82 or demand for additional duty, additional tax and surcharge is not at all justified. The Tribunal has already enunciated the postulates therefor, in its judgment No. 76/95, dated 5.5.1997 pertaining to a case of similar nature of M/s. Pearl Continental Hotel, Lahore, wherein all such penalties were remitted. We order accordingly in the instant case as well. Reliance in this behalf is also placed on judgment of the Lahore High Court reported as PTCL 1995 CL 1 titled M/s. Mammy Beverages, Murree v. Federation of Pakistan and another case of M/S. Lone China.
"Up-shot of the aforesaid discussion is that after the payment of central excise duty and sales tax adjudged against them by the learned Additional Collector of Central Excise-I, Lahore. Nothing is now due from them on account of additional duty, additional tax, surcharge and penalties which being unwarranted stands remitted."
3. Bare perusal of the above-referred portion of the impugned order makes it evident that appellant paid the entire principal amount in order to avoid penalties which were even more than the principal amount. There is not a single word in these appeals that no such statement was made before the Tribunal. We have noticed that appellant subsequently filed application to the Tribunal for rectification of order dated 14.10.1997 but the said application was dismissed on 30.3.1998 and appellant was directed that this part of the order may be challenged in appeal but the appellant has not made any amendment in memorandum of Appeals to challenge the same.
4. After thorough examination of the record and in-depth hearing of the learned counsel for the parties we find that not only there is no question of law raised out of the impugned order dated 14.10.1997 but the appellant is also estopped by its own conduct to claim the principal amount of duty already paid before the Tribunal to get penalties remitted. There is no need to recapitulate entire case-law on the well-established principle of estoppel, however, we may refer to some of the judgments, In the case of Muhammad Yousaf and three others v. Mst. Zubeda Begum and others (1993 MLD 2138) held as under:- "The general principle was expressed by the well- known maxim "res judicata proveritate occipitur".
A judgment by consent or by default raises an estoppel not less than does a judgment which results from a decision of the Court after a matter has been fought to the end. (see Broom's Legal Maxims pages 217, 221). And if a judgment by consent or by default raises an estoppel, there is no reason why a withdrawal should not." and Nathey Khan v. Mehr Din and another (1994 MLD 1630) wherein it was held as under:- Thirdly; if the appellant/his counsel, does not press any ground incorporated in the memorandum of appeal before the first Court of appeal, then such ground is deemed to have been abandoned by that party and resultantly that party is not entitled to raise that question before the second Appellate Court. Reference be made to Karim Bakhsh v. Qadir Bakhsh (PLD 1950 Lah. 143); Mehr Bakhsh v. Maula Dad (PLD 1951 Lah. 113); Abid Hussain v. Afsar Jahan Begum (PLD 1972 Kar. 54) and Noor Muhammad v. Din Muhammad (1986 CLC 2337).
And J.F.C. Gollaher v. Samad Khan (1993 MLD 726) wherein it was held as under:- "The rule applicable may somewhat be of the following nature, as stated by Denning, L.J., in Charies Richard Ltd. v. Oppenheim (1950) 1 All. 420):- "if the defendant, as he did, led the plaintiffs, to believe that he would not insist on the stipulation as to time, and that, if they carried out the work, he would accept it, and they did it, he could not afterwards set up the stipulation in regard to time against them. Whether it be called waiver or forbearance on his part, or an agreed variation or substituted performance, does not matter. It is a kind of estoppel. By his conduct he made a promise not to insist on his strict legal rights. That promise was intended to be binding, intended to be acted on and was, in fact, acted on. He cannot afterwards go back on it."
5. As observed above, there are no questions of law for us to answer; therefore, we find no merits in both the appeals (Customs Appeal No. 22 of 1997) and (Custom Appeal No. 23 of 1997) are dismissed.