S. T. A. No. 1223/LB of 2001, decided on 2nd April, 2002. Versus S. T. A. No. 1223/LB of 2001, decided on 2nd April, 2002.
MIAN ABDUL QAYYUM, MEMBER (JUDICIAL)--- This appeal is directed against the sales-tax Order-in-Original No.24 of 2001, dated 17-4-2001 (dispatched on 30-4-2001), passed by the learned Additional Collector (Adjudication), Faisalabad.
2. An informer provided photo copies of 56 invoices allegedly issued by the appellant to show that it had made supplies to unregistered persons, collected sales tax but did not deposit the same in the treasury. In order to verify the genuineness of the information, supply register of the appellant for August, 1999 was examined which showed that the suspected invoices had not been entered in the supply register for August, 1999 whereafter a team of sales tax audit staff was constituted who checked supply register, sale ledger and cash ledger of the appellant for the period from July, 1999 to September, 1999 and found that the appellant had made supplies of Yarn to Muhammad Baqir, Muhammad Aqeel, Ghayyur, Ahmad and Khushi Muhammad and that the allegedly unaccounted for invoices were issued to them but the sales tax received was not accounted for in its sales tax record. The appellant was thus, treated-to have violated provisions of sections 3, 6, 7, 11-, 22 and 26 of the Sales Tax Act, 1990 and an amount of Rs.35,57,380 was stated to be recoverable on account of sales tax alongwith additional tax and penalty in respect of which a show-cause notice, dated 8-2-2001 was issued which the appellant resisted on the ground that so-called photo copies of suspected invoices were in fact computer prints of various commercial invoices of various dates from 20-8-1999 to 26-8-1999 allegedly pertaining to the business transactions of various persons with the appellant; that these pages did not relate to the appellant, its record or its business transactions, these were in fact false and were fabricated to attempt to furnish image of the appellant; these photo ,copies did not pertain to the statutory period of the appellant i.e. sales purchases in the month, names of the parties, amounts received and sales tax paid (relevant record was annexed with reply); the photo copies were not admissible in evidence according to Qanun-e-Shahadat Order and even the original invoices needed corroboration; that the informer may be summoned so that he could be cross-examined and that the record produced by the appellant may be verified as the same was correct and no such supply as was alleged had been made by the company.
3. The learned Adjudicating Officer after hearing the parties and examining the record held that charge raised in the show-cause notice as proved for the reason that:--
(i) sale to unregistered persons was recorded in all the months of the year except for August, 1999;
(ii) description of goods, brand name of taxable supplies and computer code printed on the suspected supplies tallied with other invoices issued by the appellant during the other months of 1999 except for August, 1999;
(iii) the original invoices produced during the proceedings were genuine.
4. The appellant was thus directed to pay the amount of sales tax demanded in the show-cause notice alongwith additional tax and penalty equal to 50% of the tax involved under section 33(4). Hence this appeal.
5. Learned counsel for the appellant during the course of arguments on 21-2-2002 submitted that the appellant was not confronted with any original record during the adjudication proceedings and that the reference to the invoices had been incorrectly made. On the basis of these submissions, it was considered necessary that the department should produce the original record which formed basis of the impugned order. The department was, therefore, directed to produce the same on 4-3-2002. On the request of the learned D.R. made on 1-3-2002, the department was allowed to produce the said record on 21-3-2002, failing which the appeal was to be decided on the basis of available record. The learned D.R. however, did not produce the required record vide orders, dated 21-2-2002 and 4-3-2002, even on 21-3-2002 and instead requested for more time to produce the record. His request was granted after observing that although there was no justification for any further adjournment yet keeping in view the larger interests of justice between the parties another opportunity to produce the record was allowed with the direction that if record was not produced on 2-4-200 2, then the appeal would be disposed of on the basis of available record.
6. The learned D.R. failed to produce the record even today.
7. We have heard the parties and have also gone through the record made available with the appeal file.
8. In view of the submission made by the learned counsel on 21-2-2002, that the-appellant was not confronted with any original record during the adjudication proceedings and that the reference to the invoice was incorrectly made in the impugned order, we had asked for the production of the original record but the department failed to produce the same on 4-3-2002 And 1-3-2002 and even today. In the absence of this record, we are not in a position to finally determine as to whether the findings of 'the learned Adjudicating Officer are based on any record or not and for the same reason we cannot say as to whether the reference to the original invoices in the order under. challenge is factually correct or not. This being the position and in order to safeguard the interest of both the sides, we set aside the impugned order and remit the case to the learned Adjudicating Officer for a fresh decision in accordance with law after hearing the parties arid after receiving the evidence which they may like to produce.
C.M.A./746/Tax (Trib.) Case remanded,