Appeal Case No.7(44)ST/IB/2000(PB), decided on 15th June, 2002. Versus Appeal Case No.7(44)ST/IB/2000(PB), decided on 15th June, 2002.

S. M. KAZIMI, MEMBER (TECHNICAL). ‑‑‑ This judgment disposes appeal filed by Messrs Premier Sugar Mills & Distillery Company Limited, Mardan, against order. C. No. ST (Addl.Col) Adj.PSM/98/9994 dated 30‑12‑1999 passed by the Collector of Sales Tax, Peshawar, under section 45 A of the Sales Tax Act, 1990.

2. Briefly, the facts of the case are that the officers of the Collectorate of Sales Tax, Peshawar, audited the record of Messrs Premier Sugar Mills & Distillery Company Limited, Mardan, for the year 1.996‑97 and reported that the mill had consumed 49,649 tonnes of bagasse in‑house as fuel during that period without paying the sales tax leviable thereon. The Additional Collector, therefore, issued a notice C.No.3354 dated 6‑11‑1998 requiring Messrs Premier Sugar Mills & Distillery Company Limited, to show cause why sales tax amounting to Rs.9,489,562 along-with the additional tax due thereon under section.34,, should not be recovered from them besides penal action under section 33 of the Sales Tax Act, 1990. Having heard the party's counsel, the learned Additional Collector passed the Order‑in‑Original No. 8/99 dated 16‑3‑1999 noting that in case of Messrs Khanzana Sugar Mills, Peshawar, the said mill had paid sales tax on bagasse during 11 /96 to 1/97 Qa Rs.1061.85 per tonne, as against Messrs Premier Sugar Mills declaration of Rs.85/per tonne. The Additional Collector also noted that Khazana Sugar Mills Limited, had never agitated against the assessable price of Rs.1061.85 per tonne of bagasse during 1996‑97. He further held that sales tax of Rs.9,489,562, alongwith the additional tax due thereon under section 34, was payable by Messrs Premier Sugar Mills & Distillery Limited. The party filed a review application against Order‑in -Original No: 8/99 which was entertained by the Collector under section 45A of the Act. In their said written application dated nil (received in the Collectorate on 27‑3‑1999) to the Collector under section 45A, the mill had admitted price of bagasse to be ranging between Rs.85/per tonne to Rs.300/per tonne (average 177.75 per tonne). The Collector noted that the party had not filed any appeal against the said Order‑in‑Original No. 8/99 dated 16‑3‑1999 and the time bar applied for filing of appeal. However, he still passed the impugned order dated 30‑12‑1999, under section 45A of the Act, directing that bagasse in this case be assessed at a value of Rs.310/per tonne, being the value determined by a Committee constituted under section 2(46)(e) in this regard. Hence this appeal.

3. In their written appeal dated 28‑1‑2000, the appellant has challenged the legality of levy of sales tax on bagasse under section 3 of the Sales Tax Act, 1990, on the ground that burning the bagasse in their own boilers does not constitute "supply" within the meaning of section 2(33) (a) of Sales 'Tax Act 1990. However, during the course of hearing before us, the learned representative of the appellant did not raise this issue of legality of, levy of sales tax on the in house consumption of bagasse as fuel, probably in view of the judgment dated 27-2‑2001 passed by the Honourable Supreme Court of Pakistan in Civil Appeal No. 1805‑1811/98, 1392, 1417 and 1418/99, 2, 22, 129, 488 anti 489/2000 and 386‑L and 700‑L of 2000. Instead, he raised a new issue of valuation of such bagasse and invited attention to the consolidated judgment dated 3‑12‑2001 passed by the Lahore Bench‑I of this Tribunal in Appeal Cases 1235/LB/2000 and Nos. 121, 768, 784, 814, 1048, 1180, 1273, 1305, 1352, 1450, 1494, 1.603, 1983 and 2592/LB/2001 in consequence of which the Central Board of Revenue issued Notification No. S.R.O. 178(1)/2002 dated 29‑3‑2002 fixing, in terms of the first proviso to section 2(46) of the Sales Tax Act, 1990, value of Rs.200 per tonne for such in house consumption of bagasse during 1996‑97. He prayed that Rs.3,318,807, now claimed by them to have been paid in excess on account of sales tax, additional tax and penalty, may be refunded to them by declaring their assessable value also at Rs.200 Per tonne, in terms of the C.B.R.'s aforesaid Notification dated 29‑3‑2002.

4. The learned Law Officer from the Collectorate opposed the appeal on the ground that the; arguments and prayers of the appellant are totally inconsistent with the ones their written appeal and written prayer and that neither the appellant has sought Tribunal's permission to amend or substitute the written appeal nor the Tribunal has permitted them to do so. He prayed that the appeal is liable to be dismissed in view of the issues involved (in this appeal) having been settled by the honourable Supreme Court of Pakistan in its aforesaid Judgment dated 27‑2‑2001.

5. Having heard the parties and on perusal of the record of the case, we find that the arguments put forward by the learned Law Officer carry weight. The appellant has not pressed the reasonings and arguments advanced in its written appeal which are otherwise rejected in view of the Honourable Supreme Court of Pakistan's aforesaid cited judgment dated 27‑2‑2001. As regards the Notification No.S.R.O. 178(1)/2002 dated 29‑3‑2002, paragraph 2 thereof unambiguously states that "This notification shall apply to cases disposed of by the said Appellate Tribunal in terms of the aforesaid judgment". The appellant's case, having not been decided in the Appellate Tribunal's said judgment dated 3‑12‑2001 is certainly not be covered by the said notification. Moreover, appellant's case is distinct from the cases involved in the said judgment dated 3‑12‑2001 in the sense that those appellants did not have any agreed assessable price determined by a Committee constituted by the respective Collector under clause (e) of section 2(46) of the Sales Tax Act, 1990, while the appellant (in the case under appeal before us) had such a value (of Rs.310/per Kg.) determined by such a Committee constituted by the Collector of Sales Tax; Peshawar. Moreover, the price fixed by C.B.R. under the first proviso to section 2(46) is not the final price and rather, in terms of the second proviso to the said section 2(46), is deemed to be the minimum assessable price (unless otherwise directed by C.B.R.) and there is no C.B.R.'s direction to the contrary even in respect of S.R.O. 178(1)/2002 dated 29‑3‑2002. While these observations, we dispose of the appeal as dismissed and the impugned order is hereby confirmed. However, this will not debar the appellant from seeking, if it so desires, refund from the Collector in terms of section 66 of the Sales Tax Act, 1990, if they have any claim on merit and admissible under the said section 66.

6. Inform all concerned.

7. Announced.

C.M.A./M.A.K./420/Tax(Trib.) Appeal dismissed.