MANSOOR AHMAD, J..---Sales Tax Appeals Nos. 171, 173, 174, 175, 181, 182, 183, 184, 185, 197, 198, 212, 196 and 236 of 2001 arises out of a consolidated judgment, .Dated 31-3-2001 by the Customs, Excise and Sales Tax Appellate Tribunal, Lahore Bench, Lahore. In all these appeals common question of law is involved. We propose to decide all these appeals through this consolidated judgment.
2. Legal issues which emerges and the various provisions of Sales Tax Act', 1990 which require interpretation, required references in the circumstances and the background of these appeals which are delineated.
3. Section 3(1) of the Sales Tax Act, 1990 provided a charge and levy as Sales Tax at the rate of fifteen per cent. Of the value of taxable supplies made in Pakistan by a registered person in course or furtherance of any taxable activity carried on by him. Later through Finance Act, 1998 subsection (1A) was also inserted whereby it was provided that the taxable supplies made in Pakistan to a person other than registered person shall be charged, levied and paid a further tax of 3% of the- value in addition to the rate specified in sub-clause (1).
4. As the sales tax and the further tax was to be charged and levied on the value of taxable supplies, therefore, under section 2(46) value of supplies was described. Section 13 of the Sales Tax Act, 1990 contained the provision for exemption and in that it was provided under sub-clause (2) that the Federal Government may by Notification in the Official Gazette exempt any taxable supplies made in Pakistan or any goods or class of goods from the whole or any part of the tax chargeable under this Act, subject to the conditions and limitations specified therein and the Central Board of Revenue may be special order in each case stating the reasons, exempt any supply from the payment of the whole or any part of the tax chargeable under this. Act. Under sub- clause (3) it is also provided that the exemption from tax chargeable under subsection (2) may be allowed from any previous date specified in the notification issued under clause (a) or as the case may be, order made under clause (b) of that subsection. The other provisions in sequence of relevancy are relating to additional tax as contemplated under section 34 of the Sales Tax Act, 1990. It is provided therein that if a registered person or enrolled person does not pay the tax due or any part thereof in time. He shall, in addition to the tax due and, the prescribed penalties, pay additional tax at the rate of two per cent. Of the tax due per month or any part thereof.
5. S.R.O. No. 207(1)/98, dated 31-3-1998 was issued by the C.B.R. In exercising its power under section 2(46) and in that the value of taxable supplies of locally produced sugar falling under the Heading Nos.1701, 1100 and 1701. 1200 of the First Schedule to the Customs Act was fixed at Rs.14 per kilogram.
This fixation of value of sugar was extended from time to time up to January, 2000. On the same date i.e. 31-3-1998, S.R.O. 208(1)98 was issued by the. Federal Government in exercising its power under section 13(2)(a) and exempted such amount of sales tax on sugar as was in excess of the tax leviable at the assessable value notified by the C.B.R. Under SRO 207(1)98. The effect of both the Notifications one issued by the C.B.R. And the other issued by the ' Federal Government on the same date was that the value of the taxable supplies of locally produced sugar was fixed at Rs.14 per k.g. And any amount received in excess of the tax leviable at the assessable value was exempted from the payment of sales tax. This state of affairs continued till January, 2000. There was no timely extension of the valuation of the S.R.O. 207(1)/98 till October, 2000. On 21-10-2000, C.B.R. Issued S.R.O. 751(1)12000 whereby amendment in S.R.O. 207(1)/98 was made and months from February to October, 2000 were included therein.
6. The Collectorate of Sales Tax, Faisalabad observing contravention issued show-cause notices to various suppliers. The show-cause notice was issued on the premises that the value fixed under section 2(46) by the C.B.R. Was up to January, 2000 and after that period the value of the sugar supplied shall be charged at the actual value of Rs.20 per k.g. At which the suppliers made taxable supplies. Further that the exemption was only applicable to the sales tax and further that exemption through machanism of valuation was only confined to sales tax and it was not extenable to further tax payable under section 3(1A). The Adjudicating Officer passed an order in original on 30-11-2001 which was challenged before the Tribunal and the Tribunal disposed of all the appeals through a consolidated judgment which is further impugned through the present appeals.
7. When this controversy was going on before the Adjudicating Officer the C.B.R. Issued S.R.O. 751 (I)2000, dated 21-10-2000 whereby S.R.O. 207(1)/98 was shown to have been amended and the period from February, 2000 to October, 2000 was brought into pale of S.R.O. The Collector (Adjudication) held that through this amendment the value of the taxable supplies of locally manufactured sugar up to the month of October, 2000 shall be taken at Rs.14 per k.g. But it was held that this value of Rs.14 could not form the basis for working out further tax. The Tribunal on the other hand held that the S.R.O. 751(1)2000, dated 21-10-2000 was ultra vires, non-existence and the sugar mills (suppliers) were held liable to pay sales tax on the basis of the valuation of the market value which they have received for the purpose of sales tax as well as for the purpose of further tax.
8. The questions urged by the appellants through these appeals are that Tribunal has transgressed its jurisdiction. It could not detide about the vires of S.R.O. 751(1)/2000. Secondly it was argued that C.B.R. Had the jurisdiction to fix the value of taxable supplies under section 2(46) of the. Act and in that even they could issue an S.R.O. 751(1)2000 on-21-10-2000. Even endorsing the value of Rs.14 per kg for the months of February to October, 2000 in retrospect. Next it was argued that further tax is one of the specifies of sales tax. Therefore, its working had to be on the basis of Rs.14 per k.g. The value which was prescribed by the C.B.R. For the purpose of sales tax. The learned counsel appearing for the Revenue supported the judgment of the Tribunal.
9. We have taken note of the view of both the parties and considered their arguments. Firstly we deal with the amending S.R.O. 751(1)/2000, dated 21-10-2000. This S.R.O. Was issued on 21-10-2000 and it brought an amendment in S.R.O. 207(1)/98 whereby the period from February, 2000 to October, 2000 was brought into the pale of original S.R.O. 207(1)/98. A careful appreciation of S.R.O.
751(1)/2000A shows that it was merely amending SRO which brought about an amendment in S.R.O. 207(1)98 which originally was a beneficial notification. Nor any fresh liability or obligation was brought into being nor it had shaken or impaired any vested right of either of the parties, therefore, it was permissible in law to make it retrospective. By now it is well-principle that any notification which is beneficial in nature could be retrospective in its operation. This principle was approved in the case of Army Welfare Sugar Mills Limited v. Federation of Pakistan reported as 1992 SCM R 1652.
10. The Customs, Excise and Sales Tax Appellate Tribunal herein referred as Tribunal is constituted under section 194 of the Customs Act and is conferred the appellate jurisdiction under section 46 of the Sales Tax Act, 1990 for dealing with the matters relating to the appeals under Sales Tax Act, 1990. Under section 46 an appeal is competent before the Tribunal from any decision or order passed by the Collector of Sales Tax or by Officer of Sales Tax. The Scheme of Sales Tax Act reveals that the Collector passes an order after adjudication under section 45 in respect of cases falling under section 36 and section 11(2). Going down the ladder section 36 contemplates cases involving recovery of tax not levied or short levied or erroneously refunded and section 11(2) deal with the assessm ent made by the Sales Tax Officer under the Act. It is by now well-settled principle of law that the appeal is a continuation of the original lis. An appeal is a right of entering superior Court and invoking its aid and interposition to redress the error of the Court below. The conception of Appellate Authority is that it examine the original order for determining whether ought to have been passed in accordance with law that was applicable or that the subordinate Court committed an error in determining the question of fact as well as of law. The Court sitting in appeal cannot claim higher jurisdiction than the original Court. It was so held by the Supreme Court in case F.B. Ali v. State reported as PLD 1975 SC 506. We, therefore, do not find any difficulty in holding that the Tribunal as forum of appeal possesses the powers which are exercisable by the _Collector, and Sales Tax Officer exercising their jurisdiction under sections '36 and 11(2) of Sale Tax Act. A close analysis to the provisions of sections 36 and 11(2) read with section 46(4) of the Sales Tax Act, 1990, shows that the powers of the Tribunal are limited and these powers confined, as an appellate powers, in respect of matters, falling within the parameter of sections 36 and 11(2) of the Act. These powers inter alia do not include the powers of judicial review as are available to the civil Court in exercise of their plenary jurisdiction and the High Court or Supreme Court in exercise of their Constitutional jurisdiction. We, therefore, for accordingly hold that powers of judicial review as available to the superior Courts under the Constitution and the civil Court under their plenary jurisdiction are not available to the Tribunal. In the parameter of their limited jurisdiction as an Appellate Tribunal, the Tribunal could not examine the vires of S.R.O. 207(1)98 and S.R.O. 751(1)2000.
Both the S.R.Os. Were issued by the Central Board of Revenue in exercise of the jurisdiction vested in them under section 2(46) of the Sales Tax Act, 1990. The Tribunal was not vested with any power to call into question the vires of these S.R.Os. And strike down the same being ultra vires, hence we find that the Tribunal exceeded its jurisdiction in deciding the question of vires of the relevant S.R.Os. On this score the judgment of the Tribunal is, therefore, not sustainable in the eye of law and we accordingly hold, as such.
11. The next issue relate to the nature of "further tax" as provided under section 3(1A) of the Sales Tax Act, 1990, hereinafter referred to as an Act. This Act was enacted by the legislature to consolidate and amend the law relating to the levy of tax on the sale, importation, exportation, production, manufacture or consumption of goods. Entry No.49 of the 4th Schedule of Constitution of Islamic Republic of Pakistan, 1973 gives the powers to the Federal Government to legislate for taxes on the sales and purchases of goods imported, exported, produced, manufactured or consumed. Under the Act the levies on the sales tax is specifically provided in sub-clause (1) of section 3. Originally the -sub-clause (1A) was not on the statute book but it was inserted by the Finance Act, 1998 for the first time. It was an additional levy on taxable supplies made to a person other than registered person. Originally it was 1-1/2 per cent. And by Finance Act, 2000 it was enhanced to 3%. As it is a "further tax' on the taxable supplies and is charged under section 3 of the Act, therefore, it is one of the species of sales tax and it cannot be defined differently. Connected with this issue is a controversy which is that whether the value of the taxable supplies for the purpose of further tax would be the same as notified for the purpose of sales tax by the C.B.R. Under section 2(46) of the Act. The levy under section 3(1) is specifically mentioned as sales tax whereas charge under section 3(1A) is mentioned as "further tax". Although we have held that further tax is a species of tax within the scope of Sales E Tax Act, 1990 but for the purpose of construing and finding the application of S.R.O. 207(I)/98 and S.R.O. 208(1)/98 we are of the view that both the notifications which were issued on the same date when read together clearly reflect that these S.R.Os. Were issued to provide exemption and concessions to the taxable supplies of locally produced sugar.
These Notifications were issued on 31-3-1998. On the said date section 3(1A) was not on the statute book as it was inserted by the Finance Act, 1998 with effect from 1-7-1998. Principles of law relating to exemption are sufficiently crystallized. These S.R .0s. s id Notifications relating to exemption are to. Be strictly. Construed. Its principle was upheld in cases titled Orient Centre Boar v.
Commissioner Income Tax, Faisalabad (1993 PTD 306), Muhammad Amir Khan v. Controller of Excise Duty (PLD 1961 SC 119), Muhammadi Steamship Limited v. Commissioner Income Tax, Karachi (1966 PTD 664) and Rehmat Ullah & Sons v. Commissioner Sales Tax, Lahore (1996) 27 Tax 256). It is clearly given in these S.R.Os. That the exemption was to such amount of sales tax on sugar as is in excess of the tax leviable at the assessable value notified by the Central Board of Revenue under its S.R.O. No.2097(I)/98 The exemption S.R.O. Specifically mentioned sales tax, therefore, fixation of value of taxable supplies vide S.R.O. No.207(I)/98 was specifically for the purpose of sales tax and not to any other species of tax charged and levied under the Sales Tax Act, 1990. The second reason for holding this view is that on 31-3-1998 provision relating to further tax was not existing on the statute book and it cannot be contemplated that the fixation of value for exemption was being made by the C.B.R. Without having a provision of charge under the Act. Therefore, we do not find G any difficulty in holding that the fixation of value vide S.R.O. No.207(I)/98 was for the purpose of exemption under S.R.O. No..208(I)/98 and it *as only confined to sales tax and it did not extend to further tax.
12. In view of our findings hereinbefore, we partially accept these appeals and hold that the Tribunal was not vested with any jurisdiction to hold that S.R.O. No.207(1)/98 as amended vide S.R.O.
No.751(I)/2000 is ultravires and to that extent the judgment of the Tribunal is set aside.
The appeal by the revenue is accordingly accepted.
13. We further hold that the S.R.O. 751(1)/2000 was merely an amending S.R.O. Which brought about an amendment in the original S.R.O.
No.207(I)/98 it being beneficial in nature could be retrospective as well to that extent. Thirdly we hold that the H benefit of fixation of value under S.R.O. No.207(I)/98 was only confined to the sales tax as contemplated under section 3(1) and it was not available in case of further tax which was chargeable under section 3(1A). .