Sales Tax Appeal No.Q-251 of 2003, decided on 9th February, 2005 Versus Sales Tax Appeal No.Q-251 of 2003, decided on 9th February, 2005

The present Appeal challenges the vires of the order, dated 17-10-2003 passed by the Additional Collector of Customs, Sales Tax and Central Excise Adjudication, Quetta.

2. The appellant was served with a show-cause notice on 12-6-2003, whereby a number of irregularities were attributed on his part and on the basis of which he was accused of violating the various provisions of Sales Tax Act, 1990.

3. The said show-cause notice demanded a recovery of Rs.4.20 million, however, the records of the appellant were in possession of the respondent. Accordingly, the appellant sought time for submitting the reply to the show-cause notice and also demanded the supply of their records. The case was however, decided on 17-10-2003, much before the supply of the records to the appellant. The impugned order which was passed ex pane was served on them on 27-10-2003. The vires of the said order has now been challenged by way of this appeal.

4. The appellant has challenged the vires of the impugned order on two counts. Firstly, on the grounds that seized record of the appellant's operation was either in possession of the department or with the Nazir of the High Court and it was not made available to the appellant in order to submit a proper reply. In this way, the appellant contends that he has been denied a fair opportunity to defend his case. Secondly, it has been argued that impugned order has been passed ex park and that amounts to denial and violations of the principles of natural justice and in this way the impugned order suffers from procedural impropriety.

5. Confronted with these arguments, the learned department representative appearing in this case conceded that the record was not made available to the appellant during the adjudication proceedings and that impugned order was passed ex pane.

6. Both these facts are also evident from the records as well. It is well-established principle of law that no body should be condemned unheard and that before trial all the materials on the basis of which accusations have been made must be revealed to him. It is apparent that the impugned order has been passed by flouting both the cardinal principles of law. The proceedings so conducted by the respondent thus suffer from procedural impropriety inasmuch as that no fair opportunity was afforded to the appellant to represent his point of view before the Adjudication Officer. Thus it becomes a case of unfair trial. Having said that we set aside the impugned order and remanded the case back to the Adjudicating Officer for de novo trial and that too after providing a fair opportunity to the appellant.

H.B.T./190/Tax (Trib.) ???????????????????????????????????????????????????????????? Appeal allowed.