2008 PTD 1879
HAFIZ MUHAMMAD ANEES, MEMBER (TECHNICAL).--- This judgment disposes of Sales Tax Appeal No. S.T.A. 876/LB of 2005 filed by Messrs Haseeb Waqas Sugar Mills, Gujranwala, Head Office 103-B/1, M.M. Alam Road, Gulberg-III, Lahore against the Order-in-Appeal No.112 of 2005, dated 18-5-2005 (despatched on 20-5-2005) passed by the Collector (Appeals-II), Lahore upholding to the Order-in-Original No.14/ST of 2004, dated 21-4-2004 passed by the Deputy Collector Sales Tax and Central Excise (Adjudication), Lahore ordering the appellant to pay an amount, of Rs.18,42,112 (Rupees eighteen lacs forty two thousand one hundred twelve only) along with additional tax and penalty under sections 34 and 33(2)(cc) of the Sales Tax Act, 1990.
2. Briefly stated, the relevant facts of the case are that record of the appellants unit was audited during the period July, 2000 to October, 2000 which revealed that the appellant had paid further tax on fixed value @ Rs.14 per Kg instead of higher price received from the recipients as stipulated under sections 2(46) and 3(1) of the' Sales Tax Act, 1990. The above assessable value of sugar was fixed under S.R.O. 207(I)/98, dated 31-3-1998. The said S.R.O. was amended from time to time. The sales tax or the value in excess of Rs.14 per Kg was exempted vide S.R.O. 208(I)/98, dated 31-3-1998 which did not cover exemption on further tax chargeable under section 3(1A) of the Sales Tax Act, 1990. Hence for the purpose of further tax, the provision of section 2(46) were applicable.
3. As the appellant did not pay further tax on the value of supplies of sugar in excess of Rs.14 per Kg, the adjudication proceedings vide show-caused notice, dated 30-4-2003 were initiated for the recovery of Rs.18,42,112 along with consequential liabilities of additional tax and penalty under sections 36(1), 34 and 33(2)(cc) of the Sales Tax Act, 1990 for violation of sections 2(46), 3(1) and 3(1A) read with the aforesaid S.R.Os. On culmination of adjudication proceedings, vide order-in-original, dated 21-4-2004 the said amount was ordered to be recovered along with additional tax and penalty. In appeal before the Collector (Appeals), Lahore, the appellant could not win any favour and the appeal was dismissed and the order of the Adjudicating Officer was upheld on the ground that Honourable High Court has already held that further tax is a separate tax and distinct levy viz-a-viz sales tax.
4. Being aggrieved, the appellant has come up in appeal before the Tribunal on the plea that the appellant paid sales tax and further tax according to law, without prejudice to above, there is no intentional and deliberate fault on the part' of the appellant and hence no question of penalty and additional tax; the matter needs, to be referred to the collector concerned for determination as to whether further tax is chargeable, leviable and payable in the light of the judgment of the Supreme Court of Pakistan recorded in Civil Appeal No.629 of 2002 in the case titled as the Collector of Sales Tax v. Phalia Sugar Mills and others.
5. On the other hand, the counsel for the respondent rebutted the contentions and supported the impugned orders of the lower fora of adjudication inter alia by contending that the levy of further tax was not raised by the appellant before the lower fora of adjudication, where the issue was regarding levy of further tax on the value of sugar over and above Rs.14 per Kg.
6. We have examined the case record. Also considered the submissions made by the counsel for the parties. The arguments advanced by them have been given anxious consideration. So far as the levy of further tax is concerned, it was not exempt under the aforesaid S.R.O. The fixation of value was for levy of sales tax only and over and above the value fixed by the Federation Government, the sales tax was exempted whereas further tax in terms. of section 3(1A) of the Sales Tax Act, 1990 was to be collected as per the value envisaged under section 2(46) of the Act. The Honourable High Court Lahore has already upheld the above viewpoint in Sales Tax Appeal No.185 of 2001. This Tribunal in its judgment, dated 27-6-2005 delivered in S.T.A. No.1485 of 2000 had already adverted to issue in hand. Therefore, this contentious point raised by the counsel bereft of merit and legal force. The second point raised by the counsel for the appellant that further tax is not leviable as the supplies were made to the persons who were liable to be registered. The contention is misconceived and ill-founded. Section 23 of the Sales Tax Act, 1990 stipulates that full particulars of the registered person viz. registration number, full address and other relevant particulars have to be indicated in the sales tax invoices before making taxable supplies which are missing in the instant case. In the absence of all such particulars, the issue has been raised without any substance just to create confusion. Learned counsel while relying upon judgment of apex Court, dated 18-4-2006 recorded in department's appeal as well as upon a judgment recorded by my learned colleagues of 14-6-2007 in the appeal of Brother Sugar Mills contended that this appeal also be remanded to Adjudicating Authority for deciding the question of levy of further tax in the light of above decision. We have examined both judgments in the light of available record and found that both these judgments are distinguishable on fact, with respect to appeal in hand. Both the lower forums have determined in the case in hand that further tax was leviable on the higher receipts received by the appellant while in referred judgment it was to be determined if further tax on higher value is chargeable or not. In view of above discussion the appeal has no merits.
7. For the foregoing reasons, the appeal is devoid of merit and legal force and consequently is dismissed.
8. Announced.
9. Inform all concerned through registered post.
C.M.A./79/Tax(Trib.) Appeal dismissed.