MAULVI ANWARUL HAQ, J.~ This judgment shall decide Tax Appeal No. 30/2002 to Tax Appeal No. 46/2002 as common questions are involved.
2. Pursuant to a joint request made by learned counsel for parties while considering, inter alia C.M.
3244/2002, these appeals were fixed for hearing today.
3. The respondent in these cases where issues show-cause notice by an Additional Collector (Central Excise) on 3.4.1998. Short payment of Central Duty on "Solvent Oil" was alleged on the ground that the respondents were paying the duty treating the said produce to be falling under PCT Heading 2711.1100 whereas the correct heading is 3814.0000. The respondent filed a reply denying the contents of notice and the demand made therein. Hearing was conducted. Vide orders in original passed on 12.11.1999 in all these cases the Addl. Collector found that the said product is to be classified under Heading 3814.0000 and the duty payable at the rate of 10% advolorem. The short levy was accordingly ordered to be paid with additional duty at the rate of 2% per month and a penalty of 5% of the duty excluding additional duty. Feeling aggrieved the respondent filed appeals before the learned Customs, Excise and Sales Tax Appellate Tribunal, Islamabad Bench-I. These appeals were allowed vide judgment dated 15.10.2001. Now the learned Tribunal found that the said product is to be classified under heading 2710.0039 and consequently modified the order of the Additional Collector accordingly. The additional duty and the penalty was also remitted.
4. Learned counsel for the appellant contends that the learned Tribunal has committed error of law inasmuch as instead of relying upon Notification No. SRO 344(l)/2000, dated 17.6.2000 it proceeded to rely upon a letter dated 9.6.2001 of CBR while passing the impugned judgment. Further contends that upon plain reading of the said various Headings the product in question fell under PCT Heading 3814.0, Learned counsel for the respondent, on the other hand, states that the said SRO No. 344(l)/2000, dated 17.6.2000 was amended vide SRO No. 94(l)/2002, dated 13.2.2002 and as such at the moment the decision of the learned Tribunal is in accord with the statutory notification. Further contends that the product in question has been correctly classified by the learned Tribunal.
Objects that all these appeals are barred by time. To this latter objection learned counsel for the appellant refers to an application filed in all these cases for condonation of delay.
5. We have given some thought to the respective contentions of the learned counsel for the parties.
Now we find that the stated case of the respondent was that the product falls under PCT Heading 2711.1100. The Addl. Collector opined that the product falls under PCT Heading 3814.0. The learned Tribunal disagreed with both the said propositions and instead proceeded to hold that the correct PCT Heading applicable would be No. 2711.0000.
6. Now cavil is not being made before us that PCT Heading 27.11 pertains to Petroleum Gas and other gaseous hydrocarbons whereas admittedly the product in question is in liquid form.
Respondents obviously stopped pressing their plea that the product is liable to be charged under the said heading before the learned Tribunal. What remains to be seen is whether the product falls under the Heading 2710.0039 as held by the learned Tribunal or under Heading 3814.0000 as being claimed by the appellant. Now we do find that the learned Tribunal was cognizant of the statutory notification SRO 344(l)/2000, dated 17.6.2000 and what is being termed as ruling of the CBR vide letter dated 9.6.2001. However, against the said statutory notification placing the said product under PCT Heading 3814.0000, the learned Tribunal opted to follow the said ruling of the CBR dated 9.6.2001. The latter amendment vide SRO 94(l)/2002, dated 13.2.2002, being relied upon by the learned counsel has also been examined by us. However, for the order we propose to pass we would leave the said notification uncommented. At the moment suffice it to say that on several occasions the Hon'ble Supreme Court has observed that any interpretation placed by the CBR on a statutory provision cannot be treated as a pronouncement by a forum competent to adjudicate whether judicial or quasi-judicial, It has further been observed that the said CBR cannot issue any administrative direction of the nature which may interfere with the judicial or quasi-judicial functions entrusted to the various function arise under the statute and that the interpretation of any provisions of the law can be rendered judicially by the hierarchy of the forums provided for under the law. In the present case these forums are the Collector and the learned Tribunal.
Reference be made to the case of Messrs Central Insurance Co. And others Vs. The Central Board of Revenue, Islamabad and others (1993 SCM R 1232). We do find that in the instant case the said "ruling" of the CBR has affected the merits of this case.
7. So far as the question of limitation is concerned, learned counsel for the appellant states that these were 17 cases but copies in all the cases were not provided to the appellant in accordance with Section 35-C(3) of the Central Excise Act, 1944. There is nothing on record to suggest otherwise. The copies were obtained on 18.12.2001 and the appeals were filed on 8.1.2002. We, therefore, find that the failure of the learned Tribunal to provide the copies has resulted in delay in filing of the appeals and otherwise the appeals are in time from the date of delivery of the said copies. The appeals are accordingly found to be within time.
8. For reasons stated above all these appeals are allowed. The result would be that the appeals filed by the respondent shall be deemed to be pending before the learned Customs, Excise and Sales Tax Appellate Tribunal, Islamabad and shall be heard and decided without being influenced by the said ruling, on the available material on record after hearing the respective contentions of the parties.
9. Copy of this order be immediately remitted to the learned Tribunal and it is hoped that the learned Tribunal shall take all steps to decide the said appeals preferably within 12 weeks of the receipt of this order.