MUHAMMAD JAWED ZAKARIA, JUDICIAL MEMBER .---The Miscellaneous Application (Additional Ground) as well as main appeal have been filed by the Taxpayer / Appellant / Applicant assailing the order No. 19 STA/464/L TU/2018 dated 30.06.2018 passed by the learned Commissioner Inland Revenue (Appeals-IV), Karachi.
First we intend to dispose of the Miscella neous Application (AG) whereby the Taxpayer in addition to the original grounds of appeal, has raised the following additional grounds of appeal: ADDITIONAL GROUNDS OF APPEAL
1. That under Section 11 of the Sales Tax Act, 1990 Commissioner Inland Revenue is empowered to pass the order and cannot delegate the powers to any Sub-Ordinance officer and only Commiss ioner is competent to undertake assessment proceedings.
2. That Additional Commissioner Inland Revenue has erred in pass the order under appeal without jurisdiction and without legal effect.
3. That CIR (A) has erred in confirming and or remand back the order passed under Section 11 of the Tax Act, 1990 without appreciating the legal position that Under Section 11 of the Sales Tax Act, 1990 only the Commissioner Inland Revenue is authorized to issue the notice and then pass the order thereunder .
2. Following main grounds of appeal have also been taken against the order of the learned CIR (A) which are reproduced hereunder: GROUNDS OF APPEAL "1. That the order passed by the learned Commissioner Inland Revenue (Appeals-IV), Karachi is bad in law and against the facts of the case.
2. That Commissioner Inland Revenue (Appeals-IV), Karachi was not justified to remand back the levy of sales tax amounting to Rs.588.633(m) under Section 11(2) of the Sales. Tax Act, 1990 under various heads without ignoring facts of the case and legal provisions of law as all necessary documents and evidence were provided during assessment proceeding as well as at the appellate stage.
3. That the learned Commissioner Inland Revenue (Appeals-IV), Karachi has filed to realize that the fact that the appellant did not charge or recover any sort of sales tax as alleged by the assessing officer either from registered or unregistered persons.
4. That learned Commissioner Inland Revenue (Appeals-IV), Karachi was not justified to conform the levy of "Further Tax Under Section 3(1A) of the Sales Tax Act, 1990" amounting to Rs.14781 (m) which is against the provisions of the law as the said levy is consequential effect of the principle issues.
5. That Learned Additional Commissioner Inland Revenue has erred in passing combined order from December 2012 to July 2017 in violation of Sales Tax Act, 1990 and Federal Excise Act, 2005 as such the order under Appeal is unlawful and against the provisions of law .
6. That the appellant craves permission to amend, alter or add to the grounds of appeal on or before the date of hearing."
3. Brief facts of the case are that the taxpayer / Appellant imports edible crude oil and manufacture ghee and cooking oil and supply locally , import of edible crude oil is subjected to 16% Federal Excise Duty (FED) under section 3(1) of the Federal Excise Act, 2005 (the FE Act) vide S. No. 2 of the Table 1 of the First Schedule to the FE Act and the Federal Government vide SRO. 24/2006 dated 07-01-2006 also levied a fixed amount of FED @ of Rs.1 per KG on import of edible oils in lieu of FED payable at production or manufacturing stage. The manufacturers of edible oil are entitled to make exempt supplies of vegetable ghee and cooking oil manufactured from such imported oil on which fixed amount of FED @ Re.1 per KG has been paid at import stage. Later on this facility also extended to the manufacturers of vegetable ghee and cooking from locally produced oil vide SRO 507(I)/2013, dated 12-06-2013. As edible oil including vegetable ghee and cooking oil are listed out under Table II of the FE Act, therefore, FED on import and on supply by manufacturers or importers is levied under sales tax mode i.e. a tax levied under section 3 of the Sales Tax Act, 1990 (the ST Act). Further , supply of edible oil and vegetable ghee including cooking oil, on which FED is already charged, levied and collected by a registered manufacturer or importer in sales tax mode is exempt from levy of sales tax through S.No.24 of the Sixth Schedule to the ST Act. Accordingly , manufacturer s and importers of vegetable ghee and cooking oil were not entitled to issue sales tax invoices to their buyers being exempt supplies. However; local manufacturers utilizing such edible oils and cooking ghee in processes of manufacturing of their products made a representation before the Federal Board of Revenue (FBR) that due to non-chargeability of FED on local supply to them and exemption from levy of sales tax, manufacturers of cooking oil or ghee does not mention the amount of FED separately on invoices and as a result adjustment thereof is not available to the purchasers and FED paid at impo rt stage by the manufacturers of edible oil has become cost and accordingly liable to raise the prices of their goods. The FBR to facilitate them issued a circular C.No.1(3)/CEB/04 dated 20.04.2006 whereby it has been provided that in cases where cooking oil or ghee is supplied to manufacturers of other items in which the cooking oil or ghee is used as an input, the manufacturer suppler of cooking oil or ghee shall issue sales tax invoice, in the format prescribed in the circular , indicating the total value of supply (inclusive of duty) and mention the component of excise duty paid at import stage as well as Re.1/- per kg paid in lieu of duty payable on value addition) by using the formula of tax fraction i.e. (15/1 15 X value of Supply). Further , such invoice shall be issued only to the registered manufacturers engaged in making taxable supplies of goods in which cooking oil/ghee is used as an input . In case supplies are made to persons other than registered manufacturers, invoice shall be issued in another format. Accordingly , manufacturers of cooking oils and ghee when supplied cooking oil and ghee to other manufacturers they are only allowed to mention the amount of FED leviable on such supplies on the basis of fraction of value of supply so the manufactures buying edible oil and ghee enable to claim input tax. However , manufactures of edible oil or ghee are not authorised to collect such amount of FED from buyers as such amount of FED is mentioned only to facilitate to buyers otherwise such supplies, are exempt from levy of FED and sales tax.
4. Proceedings were initiated by the Assessing Officer on the allegation that the appellant was violated and misused the provisions of FBR's circular C. No. 1(3)/CEB/04 dated 20.04.2006. The assessing officer issued impugned show-cause notice dated 02-11-2017 to the appellant and alleged that on perusal of Monthly Sales Tax and Federal Excise Returns for the period from December 2012 to July 2017 and data retrieved from e-portal of FBR, it has been observed that the appellant has been involved in import and manufacturing of edible cooking oil and ghee, paid due FED at import stage including Rs.1 per KG, therefore local supplies of the appellant may be exempt and appellant has not been allowed to issue tax invoices on local supplies, except as per the provisions of FBR's circular C.No.1(3)/CEB/04 dated 20.04.2006. The assessing officer further stated that it has been observed that the appellant during such period had issued tax invoices to various manufacturers, other registered persons and unregistered persons with charging of amount of FED/tax on such invoices as per the FBR Circular (supra), however the assessing officer has reached to conclusion that the appellant was also collected such amount of FED/tax from buyers but failed to deposit such collected amount of FED in the Government Treasury , the Taxation Officer also concluded that the appellant also failed to charge further tax on such supplies made to unregistered persons, accordingly the assessing officer had also raised a demand for non-payment of further tax chargeable under section 3(1A) of the ST Act. Even though the appellant denied the charges and stated that he neither issued a tax invoice under the provisions of the above referred FBR circular except registered manufacturer nor collected any amount of FED/T ax against such invoices, therefore, the assessing officer had issued impugned assessment order dated 29-12-2017 for recovery of amount of FED/T ax allegedly charged and collected by the appellant and amount of due further tax the appellant has required to be charged and deposited as per the provisions of section 3(1A) of the ST Act on supplies of cooking oil and ghee to unregistered persons.
5. The appellant being aggrieved with the action of the Assessing Officer, has filed an appeal before the Commissioner (Appeals), who after giving due consideration to submission of the appellant has passed impugned appellate order dated 30.06.2018, whereby the Commissioner (Appeals) considering the factual and legal position that core issues involved in the appeal are that - Whether appellant issued invoices as per above circular with amount of FED/T ax to registered persons other than manufacturers and to unregistered persons - whether appellant collected any amount of FED/T ax in excess of value of supply of cooking oil or ghee as reflected on invoices. - Whether further tax is levy able on supply of cooking oil and ghee made by the appellant to unregistered buyers under section 3(1A) of the ST Act in addition to amount of FED mentioned of invoices issued as per above referred circular .
6. The Commissioner (Appeals) after giving due consideration to factual submissions of the appellant and considering that the appellant has not been provided proper opportunity of hearing and presenting his case during assessment proceedings has remanded back the matter relating to first two above issues to the assessing officer with the directions to re-examine in light of related facts particularly invoices, the actual amounts paid by the buyers there against and pass a fresh order after properly confronting the appellant i.e. Whether appellant issued invoices as per above circular with amount of FED/Tax to registered person other than manufacturers and unregistered persons and whether appellant collected any amount of FED/T ax in excess of value of supply of cooking oil or ghee as reflected on invoices. Whereas, in respect of third issue i.e. regarding levy of further tax on such supplies to un- registered persons the Commissioner (Appeals) decides the matter against the appellant by holding that the amount of further tax has to be paid by the unregistered buyers and the appellant only required to charge and collect the applicable further tax and to be paid to the exchequer by the appellant, without any disturbance or enhancement of the by appellant's own tax liability . The amount of further tax is a sort of disincentive for those refusing to be registered against the express statutory requirement. The whole tax regime as envisaged in the ST Act shall lose its efficacy if both the registered and unregistered persons are allowe d to be treated at par, therefore, amount of further tax leviable on all amounts of sales made to unregistered persons is upheld.
7. Being dissatisfied with the order-in-appeal dated 30.06.2018 passed by the learned Commissioner (Appeals), the Appellant came up to this forum for redressal of his grievances on both issues i.e. remand back of demand related to alleged charging, collection and non-payment FED from manufactu rers, other registered and un- registered person and confirmation of demand for non-charging of further tax on aforesaid supplies to unregistered persons.
8. During the appeal proceedings, the AR of the appellant informed that the Taxpayer had participated in the remand back proceedings before the assessing officer and present all the relevant records and evidence for establishing factual position that appellant has always been fallowed the procedures laid down by the FBR through circular C.No.1(3)/CEB/04 dated 20.04.20 06 and only issue invoices showing amount of FED when made supplies of cooking oil or ghee to registered manufacturers and that appellant has never issued invoices as prescribed under above circular to un-registered person and to effect that the appellant has never collected any amount in excess of value of supplies being FED under above circular .
9. The learned AR also submitted that remand back proceeding are at the verge of conclusion, therefore, during hearing he just pressed on the issue of creating demand of further tax against appellant by the assessing officer and confirmed by the Commissioner (Appeals). Therefore, we have restricted our findings in this appeal only to the issue of demand relating to further tax. The AR during the hearing vehemently argued in support of grounds of appeal and strongly opposed the impugn ed order in appeal passed by the learned Commissioner (Appeals) and assessment order and show-cause notice issued by the assessing officer on the other hand the DR strongly support the orders passed by the assessing of ficer and the learned Commissioner (Appeals).
10. After considering legal submission made by the both parties and going through the facts and legal position narrated and finding given by the both subordinate authorities in the impugned orders, we are staggered that no one at any stage considered correct legal and factual position of this particular case and just discussed in detail case laws that what is the reason behind introduction of further tax by inserting section 3(1A) under the ST Act. The assessing officer in the impugned assess ment order has given reason for levy of further tax in present case that as the appellant allegedly issued FED invoices under the provisions of above referred circular to certain unregistered persons and collected such amount of FED from buyers illegally and without authority , therefore, the appellant also liable to pay further tax under section 3(1A) of the ST Act for making such supplies to unregistered persons.
Whereas, the Commissioner (Appeals) who at one side in impugned order-in-appeals has agreed with the submissions of the appellant and remand back the matter to assessing officer to ascertain that whether the appellant has issued invoices under circu lar with amount of FED to unregistered persons or not, has on other side confirmed the levy of further tax same supplies allegedly made by the appellant to un registered persons. When he was not confirmed about the factual position that did appellant made such supplies to un registered persons how can he confirmed demand of further tax on same supplies? i.e. if it is established in remand back proceeding that the appellant has not issued any invoices to un registered person under the provisions of above referred circular than order of the Commissioner (Appeals ) regarding confirmation of demand relate d to non-charging of further tax become infructuous.
The learned AR of the appellant however , prayed that this Bench may give its verdict only on the issue of chargeability of further tax on supplies which is subject matter of this appeal, otherwise in case of any adverse finding by the assessing officer in the remand back proceedings would exposed the appellant for recovery of demand related to further tax.
11. Considering the plea of the learned counsel to be in accordance with law, therefore, we have given our finding on this issue for protecting the rights of appellant to get justice and equity .
12. The learned D.R. on the other hand, strongly supported the orders of the officers below . The learned D.R. contended that the learned CIR(A) had rightly remanded back he case for examining the case in the light of facts particularly ten voices, the actual amou nt paid by the buyers and to pass a fresh order on the issues after opportunity of being heard to the taxpayer . He, therefore, prayed that the order of the learned CIR(A) may be maintained.
13. We have heard both the learned representatives and have gone through the records of the case as well as case laws cited at bar .
14. The core issue involved in this appea l pertains to levy of further tax under section 3(1)(A) of the Sales Tax Act, 1990 we may record our findings as under:
15. For asserting that subject matter of this appeal is in respect of supplies made by the appellant allegedly by issuing invoices under above referred circular to unregistered persons are subject to further tax under section 3(1A) of the ST Act or not, at the outset we have to determine the scope of section 3(1A) of the ST Act and accordingly its application on subject matter supplies of the appeal. For ease of reference we reproduce below section 3(1A) of the ST Act "3(1A) Subject to the provision of subsection (6) of Section 8 or any notification issued thereunder , where taxable supplies are made to a person who has not obtained registration number , there shall be charged, levied and paid a further tax at the rate of three percent of the value in addition to the rate specified in subsections (1), (1B), (2), (5), (6) and section 4 provided that the Federal Government may, by notification in the official Gazette, specify the taxable supplies in respect of which the further tax shall not be charged, levied and paid.
16.It is apparent from simple reading of section 3(1A) that "further tax" shall be levied at 3% of value of supply made to a person who has not obtain registration number , but only in cases where supply of such goods is "taxable" under any of subsections (1), (1B), (2), (5), (6) of Section 3 or under Section 4 of the ST Act. In other words any supply of goods if do not meets the above conditions i.e. do not taxable under specified subsection of section 3 or Section 4 of the ST Act should not be subject to levy of further tax in any case.
17. At the same time we may also refer to subsections 3(3A) and 3(B) which are reproduce hereunder for ready reference: "(3A) Notwithstanding anything contained in clause (a) of subsection (3), the 4{ Board with the approval of the Federal Minister -in-charge) may, by a notification in the official Gazette, specify the goods in respect of which the liability to pay tax shall be of the person receiving the supply .
(38) Notwithstanding anything contained in subsections (1) and (3), sales tax on the import and supply of the goods specified in the Ninth Schedule to this Act shall be charged, collected and paid at the rates, in the manner , at the time, and subject to the procedure and conditions as specified therein or as may be prescribed, and the liability to charge, collect and pay the tax shall be on the persons specified therein . (Emphasis provided)
A cumulative reading of the above subsections made it clear that the tax liability , if any, should be collected from the person to whom supplies are made. In this case the taxpayer is a supplier of edible oils and vegetable ghee including cooking oil, therefore, there should be no liability against the taxpayer and secondly the supplies of the same are exempt from the tax under section 13 of the Sales Tax Act read with Item No.24 of the Sixth Schedule to the Sales Tax Act.
18. Now, we determine that supplies that are subject matter of this appeal meets the above requirements for levy of further tax as stipulated in Section 3(1A) of the ST Act or not. The assessing officer himself admitted fallowing legal and factual position in starting paras of the show-cause notice and assessment order that: - the appellant is involved in manufacturing and supply of edible vegetable ghee and cooking oil from imported edible oil. - local supply of such vegetable ghee and cooking oil by manufacturers is specifically exempt from sales tax vide serial No. 24 of the Sixth Schedule to the ST Act. - Import and local supply of such edible oil is subject to levy of FED at 16% in sales tax mode. - Local supply of such vegetable ghee and cooking oil by manufactures was exempt from levy of FED through SRO 24 of 2006, if an extra amount of FED at Rs.1 per KG at import stage has been paid in lieu of FED payable on production or manufacturing stage of such vegetable ghee and oils.
19. Therefore, in view of the above legal and factual position that local supplies of vegetable ghee and cooking oil subject matter of this appeal were specifically exempt from levy of sales tax in terms of serial No 24 of the Sixth Schedule to the ST Act as well as exempt from levy of FED in terms of SRO 24 of 2006. Further , as supplies made by the appellant subject to this appeal of vegetable ghee and cooking oil were not "taxable supplies under subsections (1), (1B), (2), (5), (6) of Section 3 or under Section 4 of the ST Act. Therefore, we have no hesitation to hold that such supplies did not meet the requirements stipulated in section 3(1A) of ST Act for levy of farther tax, hence, were not subject to further tax under any imagination of mind.
20. In this respect reliance is placed on judgment passed by the honorable Sindh High Court in case of Digicom Trading (Private) Limited reported as 2016 PTD 648 (HC). In this case the petitioner challenged the show-cause notices issued by the tax department for recover of sales tax under section 3(1) and, further tax under section 3(1A) of the ST Act on local supply of imported cell phones. The Honorable High Court has held that when petitioner paid fixed amount of sales tax at import stage as per the provisions of the SRO. 460 of 2013, its local supply of cell phone become exempt under section 13 of the ST Act. Thereafter , question of payment of any sales tax in terms of Section 3(1) or further tax in terms of Section 3(1)(A) of the Act, on local supply of such exempt goods to unregistered person(s) does not arise. Relevant para of the order is reproduced below-- "The words used in Section 13(2) (a) of the Act are very specific and provides for exempting any taxable import or supply of any goods from the whole or any part of the Sales Tax chargeable under the Act and not merely under Section 3(1) of the Act as contended by the learned Counsel for respondent No. 2. This would mean that the provision of Section 13 of the Act has an overriding effect on the chargeability of Sales Tax in terms of Section 3(1) as well as 3(1) (A) of the Act. Once the mechanism has been prescribed by the Federal Government by issuance of a Notification in terms of Various provisions of the Act, including Section 13(2) (a) of the Act ibid, the question of payment of any additional tax in terms of section 3(1)(A) of the Act, for supply of goods to unregistered person(s) does not arise. The provision of Sectio n 31(1)(A) could only be invoked in respect of goods which are being charged Sales Tax under Section 3(1) of the Sales Tax Act, 1990 at the rate specified therein at ad-valorem basis is presently @ 17%. Once the mode and manner and the rate of Sales Tax has been altered, modified or fixed by the Federal Government either through subsections (2) (b) and (6) of Section 3, read with Section 8(1) (b) of the Sales Tax Act, 1990, as well as under Section 13, no further tax can be demanded once the liability of Sales Tax is discharged on the basis of a special procedure a contemplated under S.R.O. 460(1)/2013.
21. Further reliance can be placed on the judgment of the Division Bench of this Tribunal bearing S.T.A. No. 244/KB/2017 dated 21.1 1.2017 wherein it has been held as under: "11. We have given due consideration to the arguments urged before us and also gone through the relevant orders.
We have also minutely considered the aforesaid contentions. Firstly we have noted that the judgment of the Honourable Lahore High Court dated 23rd December 2016 on which the department placed reliance has already been suspended vide I.C.A. No.178 of 2017 dated 22nd February , 2017. Secondly , Hon'ble Sindh High Court is pleased to resolve the issue in the repor ted judgment as 2016 PTD 648. In said judgment the matter has been resolved in favour of the taxpayer in the following manner: - "once the mechanism has been prescrib ed by the Federal Government by issuance of a Notification in terms of various provisions of the Act, including Section. 13(2) (a) of the Act abid. The question of payment of any additional tax in terms of section 3(1)(A) of the Act, for supply of unregistered person(s) does not arise. The provision of section (1) (A) could only be invoked in respect of goods which are being charged Sales tax Under Section 3(1) of the ST Act, at the rare specified therein at ad-valorem basis which is presently @ 17%. Once the mode and manner and the rate of Sales Tax has been altered, modified of or fixed by the Federal Government either through subsections (2)(b)-and (6) of Section 3, read with Section 8(1)(b) of the act, as well as under section 13, no further tax can be demanded once the liability of Sales Tax is discharged on the basis of a special procedure on the basis of a special procedure as contemplated under S.R.0 460(1)/2013"
"In view of herein above facts and circumstances of the instant case we are of the view that the petitioner has discharged its liability of sales at the import stage by complying with the provisions of SRO 460(1)/2013 which has been issued by the Federal Government in terms of Special provision for collection of sales tax in a manner and mode and @ other then provided under section 3(1) of the Act, Including the provision of section 13 of the Act which has an overriding effect viz chargeability of the tax is not required to pay any additional tax in terms of Section 3(1) (A) of the Act. Accordingly , that the impugned show-cause notice issued in terms of Sections 11(2) and 11(3) of the Act for payment of additional tax has been issued without any lawful authority and jurisdiction is hereby quashed Petition stands allowed in the aforesaid terms.
12. We very respectfully following the judgment of Hon'ble High Court supra feel necessary to mention here that if contradictory judgments on the issue are available, one of the Higher Bench should be following. Even otherwise , the operation of the judgment of the Honourable Singly Bench of the Lahore has been suspended in Intra Court Appeal by a Division Bench vide I.C.A. No.178 of 2017. Hence following the ratio settled by the Honorable Sindh High Court in the judgment cited supra we feel no hesitation in holding the charge of further tax as unlawful and unjustified . Mover , in .similar circumstance, Tribunal Lahore Bench deleted further tax vide its order STA No.1422/LB/2010 dated 13.02.2017, STA No.372/LB/2017 dated 01.07.2017 by following the aforesaid Judgment of Honourable Division Bench of Sindh High Court Karachi.
(Emphasis by us)
Further reliance can be placed on the judgment bearing ITA No.197/LB/2017 dated 1.6.2017 wherein it has been held as under: "12. The pleading of the learned AR that the goods of the appellant are of the nature used by general public/end consumers also carry face. This is what which been admitted by the department in the sense that the supplies have been made to unregistered persons, We also agree with findings of the assessing other being upheld by the learned CIR (A) that the appellant is not registered as retailer and does not fall in category at Sr.No.4 of Table in SRO 648. The registered person is also not covered under Sr. No. 6 However , exemption from further tax is available to the registered person vide Serial No.5 of SRO 648(1)12013 dated 09.07.2013 and the assessing officer had failed to appreciate the facts of the case. Serial No.05 of the said Table Provide exclusion from further tax to the end consumers. It is an inclusive definition and tyres and tubes may qualify for the exclusion. It is a fact that the registered person/appellant mad part of its supplies to the unregistered person.
Perusal of supply registered as maintained by appellant / registered person reveals that these are small traders, retailers. Etc. The goods so supplied are directly useable by the General Public without further processing. It is worth mentioning that the assessing officer misconceived the concept of direct supply to end consumers. No. such definition of end consumer is given in the Sales Tax Act, 1990. However , we may rely on Dictionary meaning.
According to Online Business and end consumer is (an) end user and not necessarily purchaser , in the distribution chain of a good or service" It means the people who select and buy products which are not for their own use, consumers may use products but not purchase them.
(Source :smail-busines.chron.com/definition-end-consumer -43282-html accessed 01.06.2017."
The question is how does the goods form manufactures reach the end consumers. The tyres and tubes are supplied in bulk to the manufacturing of vehicles which are registered persons. The supply to un-registered persons constitute 40% of total sales of the registered person/Appellant. No further processing is involved to reach these products to the end consumers and are directly useable. According to the above given definition of "end consumers" all such supplies are to be treated as "direct supply to end consumers. Thus the registered person/appellant duly qualify for exclusion/exemption from further tax as per Sr.No.5 of the Table in SRO.
648 and charge of further tax under section 3(1A) on such supplies is illegal and without lawful consideration being assessed under special Procedu re Rules as held by the Hon'able Sindh High Court vide judgment cited above and followed by the T ribunal in another case."
22. During the hearing the DR further raised an argument that the case under appeal has been made against the appellant for un authorised collection of amount of FED from buyers against supplies subject to this appeal on the basis of invoices issued by the appellant under the provisions of above referred circulars. Therefore, as appellant instead of availing exemption charged and collected FED on such supplies therefore further tax is also recoverable.
23. We have also considered such argument of the DR but found no merits as Section 11 of the FE Act specifically dealt with such situation where a person for any reason has collected and amount being FED payable which otherwise not payable as FED or collected in excess of the FED actually payable and the incidence of which has been passed on to the buyer . In such situation the such person is required to depo sit in Government treasury only such amount which collected in excises of amount of actual FED. Therefore, there is no question arise of recovery of an amount of further tax which has not been collected by the appellant.
24. Even otherwise, as discussed above further tax is leviable under section 3(1A) of the ST Act on supply of goods taxable under subsections (1), (1B), (2), (5), (6) of Section 3 or under Section 4 of the ST Act, whereas in this appeal department's case is about recovery of amount of FED leviable under section 3 of the FE Act at the rate of tax as prescribed under First Schedule to the FE Act i.e. 16% of value of supply . So how can charge of further tax arise on charging or unauthorized collection of amount of FED under the provisions of the FE Act including above referred circular which was also issued under the powers and provisions of the FE. Act. Hence, such argument of the DR also not acceptable being has no merits and legal support.
25. In view of the facts and legal position as discussed above in detail, we vacate the findings of the both assessing officer and the Commissioner (Appeals) regarding levy, collection and recovery of further tax under section 3(1A) of the ST Act on supplies vegetable ghee and cooking oil or invoices issued in perchance of above referred FED circular and impugned assessment order and order in appeal are hereby annulled being ab initio void.
26. Consequently , the Appeal stands allowed.