' NAZIM HUSSAIN SIDDIQUI, J.---Respondent-Sandoz (Pakistan) Limited is manufacturer of product called `Leucophor'. It is alleged that the goods produced under above name were being cleared by the Excise Department without any demand of excise duty and, after lapse of many years, Central Excise Department classified said product under Entry No,4-3 of the 1st Schedule to the Central Excise and Salt Act, 1944. Excise Department set up a claim for excise duty payable thereon. Leave to appeal is granted to consider the following:---
(i) As per Entry No,4-3 glazes, lusterers, lacquers and polishes and their ancillaries in any form fall within the ambit of said entry and such are chargeable to excise duty and whether leucophor being of this category also falls within the scope of said entry.
(ii) Whether the respondent contravened rules 7, 9, 52, 236 and 238 of Central Excise Rules, 1944:
(iii) Whether Leucophor' and Tenophal CBS-X' are comparable commodities and are to be treated alike.
Leave granted.
003 PTD 1445 [Lahore High Court] Before Nasim Sikandar and Muhammad Sair Ali, JJ Messrs MILLAT TRACTORS LTD., LAHORE versus COLLECTOR OF SALES TAX AND CENTRAL EXCISE, LAHORE.
Custom Appeals Nos. 67 and 84 of 2002, heard on 28th November, 2002.
(a) Sales Tax Act (VII of 1990)--- ----Ss.8(1)(a), 34, 36, 47, 66 & Sixth Sched. , Sr. No,49---S.R.O. 816(1)/98, dated 20-7-1998---Claim for input tax paid on import of parts used in manufacturing agricultural tractors---Such supplies were exempt from levy of sales tax w..e.f. 12-6-1998 to 22-7-1998--Department finding registered person to have violated provisions of S.8(1)(a) directed him to deposit incorrectly adjusted amount with additional tax under Ss.34 & 36 of the Act--Tribunal set aside demand of additional tax, but confirmed order of deposit of amount wrongly claimed as input adjustment with observations that registered person could have filed refund claim under S.66 of the Act instead of making an adjustment--Validity---No question of law had arisen from such, findings of Tribunal to he considered by High Court under S.47 of the Act---Concurrent findings of fact were that registered person during such period making exempt supplies of tractors was not entitled to input adjustment, thus, its case was not covered by S.R.O. 816(1)/98 dated 20-7-1998---Objection of revenue against allowing relief by Tribunal could not be accepted as discretion exercised by Tribunal was neither perverse nor against any provision of law---High Court dismissed cross- appeals filed by registered person as well as Department. [pp. 1448, 1449] A, C, D, E, I & J
(b) Sales Tax Act (VII of 1990)-- ----S:36---Show-cause notice---Typographical mistake would not vitiate such notice. [p. 1448] B
(c) Sales Tax Act (VII of 1990)--- ----Ss. 46, 33 & 34---Provisions of S.46 of the Act---Neither governed nor controlled by provisions of Ss. 33 & 34 of the Act. [p. 1449] F
(d) Taxation--- ----Penalties or additional tax, imposition of--Principles.
Fixed amount of penalties or those imposed with reference to a certain amount leviable for default per day are relevant only at the assessment preceedings. [p. 1449] G Imposition of penalties or additional tax with reference to such provisions is not at all sacrosanct for appellate forums including Tribunal. In case, the departmental interpretation is accepted, then appeal provisions and the powers of Tribunal to allow relief with regard to the penalties and additional tax will become redundant, which can never be the intention of Legislature. [p. 1449] H Sajid Ijaz Hotina for Appellant. Maqsood Ahmad for Respondent.
Date of hearing: 28th November, 2002.
' NASIM SIKANDAR, J.---Through this single judgment we intend to dispose of Custom Appeal Nos.67 and 84 of 2002.
2. These cross-appeals by a registered person as well as the Sales Tax Department assail an order of the Customs, Excise and Sales Tax Appellate Tribunal Lahore, dated 28-11-2001. The registered person/appellant claims that following questions of law arise out of the impugned order:---
(i) "Whether the impugned show-cause notice is defective and void, ab initio as it does not specify the subsection of section 36 of the Act, under which the so-called recovery was initiated?
(ii) Whether the alleged inadmissible input tax wrongly adjusted by a registered person can be recovered under section 36 of the Act, which provides recovery of tax not levied or short levied or has been erroneously refunded?
(iii) Whether on the facts and in the circumstances the learned respondent No,2 as well as the learned Tribunal also erred in law in holding in sheer disregard of the facts of the case that the appellant had taken input tax adjustment of sales tax on imported components amounting to Rs,1,35,46,200?
(iv) Whether on the facts and in the circumstances of the case the learned Tribunal has misdirected itself in law in failing to consider the effect of S.R.O. 816(1)/98, dated 20-7-1998 on the case of the appellant?
(v) Whether on the facts and in the circumstances of the case the learned Tribunal erred in law in invoking the provisions of section 8 of the Sales Tax Act, 1990 in view of S.R.O. 816(1)/98, dated 20-7- 1998?
(vi) Whether on the facts and in the circumstances of the case, the learned Tribunal erred in law in holding that the appellant should have filed a refund claim under section 66 of the Sales Tax Act, 1990 instead of making adjustment?
(vii) Whether on the facts and in the circumstances of the case, the judgment of the learned Tribunal is arbitrary and without application of mind to the facts of the case?
2-A. On the other hand, the department states that the impugned order also gives rise to the following questions of law to be considered by this Court:---
(i) That the Hon'ble Tribunal, while striking down the imposition of additional tax and penalty has not given its arguments. Could the impugned order passed by the Tribunal under the circumstances of the case be called a judicial order and whether. Or not the same required to be modified to this extent?
(ii) That sections 33 and 34 are mandatory in their nature. Could the Honourable Tribunal ignore the explicit intent of the legislature as enshrined in sections 33 and 34 of the Act, in the circumstances of this case, when the chargeability of sales tax, notwithstanding the respondent contesting it, was absolutely manifest and clear?
(iii) That would not the impugned order be treated under the circumstances of the case by this Honourable Court against the law and the facts of the present case.?
3. The appellant is a public limited company engaged in manufacture and sale of agricultural tractors. On a report from the Audit Wing of the Sales Tax Department, the appellant was proceeded against on the ground of having claimed input tax credit of sales tax amounting to Rs,13,546, 200 paid on import of parts used for the manufacturing of agriculture tractors which was not admissible as the supplies of such tractors were exempt from levy of sales tax w,e,f, 12-6-1998 vide S. No,49 of the Sixth Schedule of the Sales Tax Act, 1990 read with S.R.O. 839(1)/98, dated 23-7- 1998 exempting input tax of agriculture, tractor by way of refund. The department alleged that no exemption being available for local components during the period from 12-6-1998 to 22-7-1998 the appellant could not make adjustments during that period.
4. The order-in-original, dated 7-2-2001 finding the appellant to have violated the provisions of section 8(1)(a) of the Sales Tax Act, 1990 directing payment/deposit, of the aforesaid amount incorrectly adjusted alongwith the additional tax under sections 34 and 36 of the Sales Tax Act, 1990 was assailed with partial success before the Tribunal. By way of the impugned order the learned Tribunal concluded that instead of making an adjustment the only way out for the appellant was to have filed refund claim under section 66 of the Sales Tax Act. Accordingly the order in original was maintained to that extent. However, keeping in view the facts of the case the learned Tribunal concluded that there was-no justification for levy of additional tax. The order-in- original to that extent was modified.
5. The appellant registered person assails the order with regard to the findings of the Tribunal confirming deposit of the aforesaid amount wrongly. Claimed as input adjustment while the Department is in cross appeal challenging the setting aside of the order-in-original with regard to levy of additional tax.
6. After hearing the learned counsel for the parties, we will agree with the learned Members of the Tribunal that during the aforesaid period and in view of the said entry of 6th Schedule to the Sales Tax Act, 1990 read with S.R.O., dated 23-7-1998 the appellant making exempt supplies of tractors was not entitled to input adjustment in view of the provisions of section 8(1)(a) of the Act. Learned counsel for the appellant has attempted to find fault with the show-cause notice issued in that regard. However, we are of the View that a typographical mistake does not vitiate that notice. Also it has not been established that the case of the appellant was covered by S.R.O. 816(1)/98, dated 20-7-1998 to entitle it to have the input adjustment. The case of the Revenue that agriculture tractors being exempt from Sales Tax Department w,e,f, 12-6-1998 and therefore, no input adjustment could possibly be made is evident from the statutory provisions and the rules and orders issued thereunder.
7. Even otherwise in our view no question of law to be considered and answered by this Court under section 47 of the Sales Tax Act, 1990, arises out of the order of the Tribunral. There are concurrent findings of fact that the appellant during the aforesaid period having engaged itself in exempt supplies of tractors was not entitled to claim input adjustment although it could make a claim for refund. These findings of fact do not give rise to any question of law.
8. As far the grievance of the Department is concerned again we are of the view that no question of law has arisen from the findings recorded by the Tribunal. They found that in the given facts, there was no justification to burden the appellant with additional tax. The provisions of section 46 are neither governed not controlled by the provisions of sections 33 and 34. In a number of cases on Income. Tax and Wealth Tax side in identical situation we have expressed the view that the fixed amount of penalties or those imposed with reference to a certain amount leviable for default per day are relevant only at the assessm ent proceedings. The imposition of penalties or additional tax with reference to such provisions is not at all sacrosanct for the appellate forums including the Tribunal. In case the departmental interpretation is accepted then the appeal provisions and the powers of the Tribunal to allow relief with regard to the penalties and additional tax will become redundant. That can never be the intentions of the legislature.
9. The objection of the Revenue against the relief allowed by the Tribunal therefore, cannot be granted. All the more when the discretion vested in the Tribunal has neither been perverse nor against any express provisions of law. Accordingly we will refuse to admit the questions proposed by the department as well.
10. Consequently the cross-appeals by the registered person as well as the Department shall be dismissed.