This Reference Application under Section 34(A) of the Federal Excise Act, 2005 (the "Act") has been filed by the Applicant, being dissatisfied by the order passed by the Appellate Tribunal Inland Revenue, Lahore Bench Lahore ("Appellate Tribunal ") in Ex.No.32/LB/2009 dated 06.09.2012. The following questions of law are said to arise out from the impugned order .
QUESTIONS OF LA W
(I) "Whether the learned Appellate Tribunal Inland Revenue erred in law while accepting the Appeal of the Respondent to the extent of penalty and default surcharge under rule 45(5) of Federal Excise Rules, 2005 and Rule 18(3) Sales T ax Rules, 2006? "
(II) "Whether the impugned order to the extent of declaring the imposition of penalty illegal is unlawful and without lawful authority?
(III) Whether the learned Appellate Tribunal exercised its jurisdiction illegally and with material irregularity in passing the impugned order?
(IV) Whether in case of payment of duty/tax through direct debit the date of payment is considered on which payment is received by the Bank?
(V) Whether payment of duty/taxes through direct debit is covered under Sub-Rule (5) of the Federal Excise Rules, 2005 and sub-Rule (5) of Rule 15 of the Sales T ax Rules, 2006?
2. Brief facts are that on failure to deposit due amount of Sales Tax and Federal Excise Duty by the Respondent, Deputy Collector (Adjudication) ordered for payment of default surcharge; that order was appealed before Collector of Customs, Sales Tax and Federal Excise (Appeals), Lahore which was rejected on 07.07.2009. Being aggrieved, the Respondent filed Appeal before the Appellate Tribunal which was allowed vide impugned order .
3. Learned counsel for the Applicant submitted that the impugned order is illegal and contrary to the law and facts of the case; that the Appellate Tribunal has not passed the above referred order in accordance with law as such the same is liable to be set aside
4. On the other side, learned counsel for the Respondents submitted that the impugned order has been passed strictly in accordance with law and does not require any interference by this Court. He also prayed for dismissal of Reference Application.
5. We have heard the arguments of learned counsel for the parties and perused the record. The Applicant in this Reference Application disputes the order passed by the Appellate Tribunal which allowed the appeal of the Respondent by observing that "National Bank was working as agent of FBR and any payment received by the National Bank under Sub-Rule (5) of Rule 45 is deemed to have been received by FBR". It was further observed that "if bank for any reason deposits and collected amount late in the account of FBR, this was a matter between the agent bank and principle FBR. The registered person could not be penalized under these facts".
The relevant/operative part of learned Appellate Tribunal order is reproduced hereunder:- "We hold, therefore, that the payment made through e-banking (direct debit) by registered person was within time.
Though, apparently , direct debit was not expressly covered under the sub-Rule (5), yet it sufficiently meets the intent and object of rule, makers. Principle of 'ejusdem generis' can be employed here to construe that payment made through "direct debit" is covered under the sub-rule".
7. We are of the considered opinion that the learned Appellate Tribunal has rightly decided the issues, which otherwise are based on the finding of facts, after detailed discussion, deliberation and interpretation of provisions of law and as such does not carry any mistake apparent on the record, therefore, does not require any interference by this Court.
8. Therefore, Reference application is decided against the Applicant.
9. Office shall send copy of this order under the seal of the Court to the learned Appellate Tribunal as per section 34A(5) of the Act.