COLLECTOR OF SALES TAX AND CENTRAL EXCISE, LAHORE vs ZAMINDARA PAPER AND BOARD MILLS and others

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- In this case the question for consideration is as to whether non-mention of specific rule in show-cause notice, dated 26-9-2000 under which the licence fee was being charged was fatal and sufficient to declare it void. Learned High Court vide the impugned judgment had opined that since the show-cause notice did not contain specific provision of law and the rules, therefore, the same was ineffective and void.

2. Learned counsel appearing for the petitioner contended that in the show-cause notice relevant rules were mentioned as it is evident from its contents but the respondents instead of filing the reply and contesting the same prolonged the proceedings by challenging its validity before the High Court in its Constitutional jurisdiction.

3. On the other hand, learned counsel for the caveat stated that there was no mention of violation of any specific provision of law, therefore relying upon the judgment in Assistant Collector Customs and others v. Messrs Khyber Electric Lamps and 3 others 2001 SCM R 838, he contended that the judgment of the High Court being proper and in accordance with law deserves no interference.

4. We have heard learned counsel for both the sides and have gone through the contents of the show-cause notice carefully. In our considered opinion the substantial compliance has been made by making reference of the rules to identify the period of time during which tax has been allegedly evaded. Therefore, merely for the reason that Sub-rules (2) and (3) of Rule 10 of the Central Excise Rules, 1944 have not been mentioned, it would have not been proper to declare the notice illegal. In this view of the matter, the judgment of the High Court is not sustainable. It is to be noted that instead of taking into consideration technicalities, the Court looks into the matter with different angles namely as to whether substantial compliance has been made or if any of the sub-rule has been Omitten then what prejudice is likely to cause to the party to whom the show-cause notice is given. But in the instant case, we are of the opinion that no prejudice shall be caused to the respondents because the substantial compliance of the relevant rules has been made. Therefore, under the circumstances, the judgment which has been relied upon by the learned counsel is of no help to him.

5. Thus for the forgoing reasons, petition is converted into appeal and allowed, the impugned judgment is set aside and the case is sent back to the Collector Sales Tax and Central Excise Lahore for the purpose of decision of the case expeditiously as far as possible but not more than a period of six weeks. The parties are directed to appear before the Collector on 17-7-2006. The respondents however shall be free to raise all legal and factual pleas in support of their case. The parties shall bear their own costs.