1. MUHAMMAD MUJEEBULLAH MEMON, J.-- In this appeal under Section 47 of Sales Tax Act, 1990, the appellant has proposed as many as 14 questions which read as follows:-
(1) Whether the learned respondent No. 1 erred not consider the verbal as well written submission of the appellant setting aside the order passed by the lower forum.
(2) Whether the learned respondent No. 1 has seriously erred to applicant a local commission for the facts of the case which is decided in two lower forums.
(3) Whether the appointment local commission is in term of the statute?
(4) Whether the learned respondent has misread the fact/law that the case was never re-opened but evaded taxes were surfaced through the scheduled audit?
(5) Whether the impugned order is within the frame work of Section 24-A of the General Clauses Act?
(6) Was it the after-thought story of respondent No. 2 that they purchased finished goods of detailing towels, bar mops, wash cloth, etc. From the local market and the same were exported as in the manner these were purchased?
(7) Whether the learned respondent No. 1 has not considered that the cotton yarn purchased through purchase invoice written statement properly consumed?
(8) Whether the learned respondent No. 1 not appreciated that the consignment exported by the respondent No. 2 had no relevancy with the consignment upon which refund claimed?
(9) Whether it was within the terms of reference of the local commission to cite case-laws in support of the then appellant's point of view. This makes the report of local commission controversial?
(10) Whether the learned respondent No. 1 misread the law to allow the appeal merely upon report of Local Commission?
(11) Whether the respondent No. 2 has not evaded the tax in strict sense to defend exchequer by using mala fide tactics?
(12) Whether respondent No. 1 not appreciated that was respondent No. 2 involved in purchasing the finished goods from the local market and exported them as it is, then for what reason, did the respondent No. 2 purchased the cotton yarn?
(13) The CBR's clarifications, Sales Tax G.Os. Quoted by the learned Tribunal has no bearing on the "case as admitted the Tribunal themselves in the last sentence where the reliance is irrelevant the conclusion drawn must also be unjustified.
(14) Whether the respondent No. 2 had the record for purchase of cotton yarn and proof of its manufacture export etc. Etc.?
2. On the previous dates of hearing, it was pointed out to the learned counsel for the appellant that the questions, as proposed are not proper and in accordance with the law. The learned counsel sought time to file the amended and properly formulated questions of law. The learned counsel has filed two questions of law today, which read as under:--
(1) Whether the respondent No. 2 has committed tax fraud to claim the input tax of 52.7 millions and an amount of 31.7 millions was erroneously refunded to the respondent No. 2 out of such input claim and sale tax officer has proper jurisdiction to issue show-cause notice under Section 36 of the Sales Tax Act for said erroneously recovered amount alongwith additional tax under Section 34 of the Sales Tax Act punishable under Section 33(4)(a)(c) for violation of Sections 3, 6, 7, 10, 11, 26 and 2(37) of Sales Tax Act, 1990?
(2) Whether the sales tax officers (auditor appointed under SRO 1160(l)/96, dated 6.10.1996) have jurisdiction to conduct the 15th Schedule routine audit program for checking the record and documents under Sections 22 and 25 of the Sales Tax Act, 1990?
3. After hearing the learned Advocates at some length, Mr. Raja Muhammad Iqbal, learned counsel for the appellant had no option but to concede that even the questions proposed today do not arise out of the order of the Tribunal the grievance of Mr. Raja M. Iqbal is that the Tribunal has considered Section 45-A of the Sales Tax Act instead of Section 36 of the Sales Tax Act, which is relevant section. Mr. Abid S. Zuberi, learned counsel for the respondent has very candidly conceded that Section 45-A is not relevant and the Tribunal ought not to have considered this section because show-cause notice was issued under Section 36 of the Sales Tax Act, which is not controlled by Section 45-A of the Sales Tax Act.
4. However, Mr. Abid S. Zuberi, learned counsel for the respondent has submitted that notwithstanding, the consideration of wrong section by the Tribunal and 'nonreference to Section 36 of Sales Tax Act, the finding is not open to any exception, for the reason that without referring to Section 36, substantial compliance has been made and the point required to be considered under Section 36 has been fully considered and dilated upon, by the Tribunal.
5. At this juncture, we would like to observe that both the Advocates have agreed, that the case of the Department is that Refund was wrongly allowed to the respondent and, therefore, show-cause notice was issued under Section 36 of the Sales Tax Act, 1990, as to why the amount refunded to the respondent may not be recovered.
6. Thus the moot point for consideration is, whether the amount refunded to the respondent was right and proper, in accordance with the law and in consonance with the facts and circumstances of the case or it was wrongly/erroneously refunded. The fate of entire case hinges on the determination of this question. Mr. Abid S. Zuberi, learned counsel for the respondent has submitted that in order to ascertain this question, the Tribunal appointed a Commissioner namely, Late Mr. S.L). Mirza, renowned and highly respected Tax Consultant and a retired Officer of Sales Tax Department. The Commissioner submitted a detailed report, spread over 9 pages and a copy thereof was supplied to the Collector of Sales Tax and Central Excise, East Karachi, on 28th August, 2000 through covering letter dated August 26, 2000.
7. The Tribunal decided the Appeal on 18.10.2001 i.e. After about one year and two months of the submission of report by the Commissioner. The Tribunal has specifically observed in paragraph 12 of the Impugned Order that "No cross objection to this report were ever filed by the department".
8. Nor the same has been objected to now. Hence even on merits, the departmental demand appears to be not justified. The result is that the Department shall be deemed to have accepted the contents of Commissioner's Report, according to which, Refund was rightly allowed and was not open to any exception. Relying on the report of the Commissioner the appeal was allowed and impugned order was set aside, whereby the respondent was asked to repay the refund.
9. Mr. Abid S. Zuberi, has therefore, submitted that no question of law arise out of the order of Tribunal, as the Tribunal has decided the issue mainly on appreciation of facts, contained in the report of Commissioner.
10. Mr. Raja Muhammad Iqbal is not able to rebut the narration of facts by Mr. Abid S. Zuberi, as recorded above.
11. Mr. Raja Muhammad Iqbal has proposed certain questions of law, which do not arise out of the order of the Tribunal, consequently, it is beyond the purview and scope of Section 47 of the Sales Tax Act, which specifically provide that an Appeal shall lie in respect of any question of law arising out of the order of the Tribunal under Section 46 of the Sales Tax Act.
12. Consequent to the above discussion, we agree with the contention of Mr. Abid S. Zuberi, learned counsel for the respondent and hold that no question of law arises out of the order of Tribunal, with the result that the appeal stands dismissed in limine alongwith the listed application.