At the very outset, learned counsel for the Appellant states that the issue raised in the instant appeal has already been decided by a learned Division Bench of this Court through order 28.07.2003 passed in STA No, 496/2002 titled Azam Textile Mills Ltd. v. The Collector, Customs, Central Excise & Sales Tax (Adjudication), etc. wherein the appeal filed by the taxpayer succeeded and the order-in-original as well as the impugned order of the Tribunal dated 12.09.2002 were set aside.
2. Brief facts of the case are that the Appellant was forced to pay sales tax in the amount of Rs, 18,859,93/-even though it was entitled to zero rating facility. The Appellant asked for refund of the amount which was rejected vide order dated 03.02.2000 by the Deputy Collector, Collectorate of Sales Tax, Gujranwala. The Appellant preferred an appeal before the Customs, Excise and Sales Tax Tribunal, Lahore ("Tax Tribunal") who vide order dated 18.03.2002 set aside order dated 03.02.2000 and directed the Respondent to decide the case on merits after giving proper hearing to the Appellant. Consequently, Respondent issued a show-cause notice on 11.04.2002 which was contested by the Appellant, however the contention of the Appellant was rejected vide order dated 18.06.2002 by imposing additional tax and penalty of Rs, 94,300/-. The Appellant went in appeal before the Collector (Appeals) who rejected the same vide order dated 22.04.2003. Thereafter the Appellant went in appeal before' the Tax Tribunal, who vide its order dated 11.08.2003 rejected the refund claim of the Appellant, however, the imposition of, additional tax and penalty was set aside.
Hence this appeal.
3. The basic issue is with respect to third party export. The questions of law raised are that the goods in question had been supplied to a third party who then exported the same. The Appellant exported 21 consignments through M/s, Rasco and M/s. Asia and it was on this account that the Appellant's refund claim was rejected. The Tribunal found that since the Appellant did not export the goods itself, it, was not entitled to zero rating facility. This question has been answered in STA No, 496/2002 (supra) on which the Appellant seeks reliance.
4. It is also noted that this appeal is pending since 2003 for instructions on behalf of the Respondent department on whether the decision in STA No 196/2002 is applicable to this case. Till today no instructions have been obtained and repeated adjournments are taken on this account.
We have heard the learned counsel and examined the record and find that the decision in STA No, 496/2002 is applicable to the case of the Applicant.
5. Under the circumstances, following the dicta laid down by this Court in STA No, 496/2002, the instant appeal is also accepted in terms thereof and the impugned order dated 28.07.2003 passed by. the Tax Tribunal is set aside.