MR. JUSTICE RIAZ HUSAIN.-(l). Petitioner No. 1 through petitioner No. 2 has filed this constitutional petition, whereby the legality of letter C. No. 10(22)DGCI/Excise/93/ 118C dated 30.3.1995 (Annexure B) has been called in question.
2. Brief facts are that petitioner No. 1, who is a public limited company (D.G. Khan Cement Company Limited), manufactures and sells the cement. The tax was assessed on advance payments received by the petitioner and the above said letter was issued by respondents No. 3 to respondent No. 4, wherein he was asked that "all the cement manufacturing units, may now be directed to deposit the sales tax due on the balance of payments received on 31.3.1995 by the forthcoming due date i.e. 20th April, 1995". It was also impressed upon that "in future, it may be ensured that the sales tax is deposited by the cement manufacturing units on the total amount of advance payments received by them during a tax period by the next due date". Respondent No. 7 issued a letter, which is Annexure F, wherein the Manager National Bank of Pakistan and the Manager Muslim Commercial Bank Dera Ghazi Khan were intimated that an amount of Rs. 60,45,070/- as sales tax was outstanding against the petitioner. They were directed to deduct the aforesaid amount from the 'account amounts' belonging to the petitioner and credit the same in the proper head of sales tax and central excise duty keeping in view the provision of sub-section 1(b) of Section 48 of the Sales Tax Act, 1990.
3. Learned Counsel for the petitioner submits that the tax cannot be levied upon advance payments against advance reservation for supply of cement which is yet to be produced, for the reason that such orders are liable to be cancelled and advance payments ipso facto refunded to the buyers. In this respect he has referred to Sections 3, 6 and 7 read with Section 2 subsections (22), (26) and (28) of the Sales Tax Act, 1990. His next' contention is that the mode of assessment was not lawful, He also argued that no doubt respondent No. 3 was appointed as a Sales Tax Officer but his powers were only in relation to Sections 25, 37, 38 and 39 of the Sales Tax Act, 1990.
4. Learned Counsel for the respondent submit that the tax levied on the petitioner on advance payments was lawful as provided under Section 2(30) of the Sales Tax Act, 1990.
5. I have heard learned Counsel for the parties and perused the relevant record and the parawise comments submitted on behalf of respondents No. 3 & 4.
6. I agree with the submission putforth by learned Counsel for the respondent. I am of the opinion that the tax was duly assessed and the petitioner was legally obliged to pay it on the advance payments received by the prospective buyers. This petition is also not maintainable in view of the fact that the petitioner has got an adequate remedy by filing an appeal against the assessment order under Section 12 of the Sales Tax Act, 1990. The petitioner shall not be prejudiced if the desired tax is deposited or it is debited by the managers of the aforesaid banks because the refund of tax can be claimed under Section 66 of the Sales Tax Act, 1990.
In view of the above, this petition is mis-conceived and is, therefore, dismissed in limine.