S.T.As. Nos. 551 to 554/LB of 2002, decided on 9th June, 2003. Versus S.T.As. Nos. 551 to 554/LB of 2002, decided on 9th June, 2003.

1. SARFRAZ AHMAD KHAN, (MEMBER (TECHNICAL)).--- This judgment disposes of four appeals as mentioned in the title since common issues on law and facts are involved and the appeals have been filed by the same appellant against the same impugned order. The events leading to these appeals started with the audit observation of a team of Directorate of Revenue Receipt Audit (DARR) to the effect that refund claimed and received by the appellants against the sale of tractors during 1998-99 and 1999-2000 was not permissible since sale of tractors took place in commercial quantity for commercial purposes and not for agricultural purposes. According to the audit observation the refund was admissible only on the sale of tractors for agricultural purposes in terms of S.R.O. 839(1)/98 dated 23-7-1998 as also Item No. 49 of the 6th A Schedule to the Sales Tax Act, 1990. Four separate show-cause notices were issued to the appellants on 19-7-2001 proposing recovery of amounts of sales tax received by the appellants as refund along with additional tax and penalty under the relevant provisions of Sales Tax Act, 1990, as specified in each show-cause notice. The adjudication proceedings culminated in passing of the impugned Order-in-Original No. 323-326/2003 dated 18-4-2002 under which all the four cases were disposed of 'and the appellants was' directed to pay the following amounts:

2. Sr.No

3. Appeal No.

4. Order-in-Origi nal No. and date ?

5. Amount of sales tax determined payable

6. Penalty imposed

7. 1

8. 551/LB/2002

9. 323-326/2002, 18-4-2002

10. Rs.56,99,140

11. 3% of the amount tax involved

12. 2

13. 552/LB/2002

14. 323-326/2002 18-4-2002

15. Rs.99,03,195

16. 3% of the amount of tax involved

17. 3

18. 553/LB/2002

19. 323-326/2002 ? 18-4-2002

20. Rs.1,38,61,350

21. 3% of the amount of tax involved

22. 4

23. 554/LB/2002

24. 323-326/2002, 18-4-2002

25. Rs.80,40,750

26. 3% of the amount of tax involved

2. During hearing the learned counsel pointed out towards para. 8 of the impugned order where in his request for adjournment of the hearing fixed on 30-3-2002 on account of death of a close relative has been regretted by the Adjudicating Officer and thus the appellant (then respondent) was deprived of putting up proper defence. He further pointed out to a consolidated judgment dated 30-3-2003 of the learned Bench-II, Lahore of this Tribunal in Appeals Nos. 2262/LB of 2001, 2263/LB of 2001 and 2408/LB of 2001 wherein identical cases had been disposed of by accepting the appeals. He pointed out that one of the Appeal No.2262/LB of 2001 related to the same appellant, as in the present cases and he had himself argued the said case. According to him, audit objections in all those cases were also made out by a team of DARR. According to him, his contentions as made in the said Appeal No.2262/LB of 2001 may also be considered as his contentions in the present appeals except for the amounts and the period. He pleaded that the present appeals may also be decided in the light of the said judgment dated 30-3-2002.

3. The learned S.D.R. opposed contentions of the learned counsel on the ground the exemption from sales tax was available only to such agricultural tractors which were supplied for "agricultural purposes", in terms of S.R.O. 839(1)/98 dated 23-7-1998 and also in terms of Sr. B No.49 of the 6th Schedule to the Sales Tax Act, 1990. He. pointed out that the sale of tractors took place to institutions like Multan Development Authority, Multan Dryport Trust, Faisalabad Development Authority and Punjab Cooperative Banks etc. which obviously had no agricultural purpose.

4. We have hard contentions of both the sides and perused the appeal tile available before us. Admittedly, the tractors supplied by the appellants were agricultural tractors of HS Code Heading 87.01. The respondents have not placed on record any evidence that supplies of those tractors was not for agricultural purposes. The audit objection was based on mere presumption that since the buyers like M.D.A., F.D.A. and Punjab Cooperative Bank etc. acquired tractors in commercial quantity from the appellants and therefore being obviously not agriculturists, these were put to non-agricultural use and hence refund was not available. The appellant's contention that there being no mechanism under law empowering them to check the use of tractors after sale to the buyers, it was impossible for them to ensure its use, can't be brushed aside. On the contrary, no evidence has been brought on record by the respondent department that the agricultural tractors in question were not being used, for agricultural purposes by the respective buyers. Mere presumption, on the basis of the name of the buyers of tractors, was not sufficient to burden the appellants with heavy liabilities to pay sales tax along with penalties etc. The respondents have not brought on record any evidence that the appellant's supplied other than agricultural tractors.

5. In view of the above, and finding support from the judgment dated 30-3-2002 of the learned Bench-II in Appeals Nos. 2262/LB of 2001, 2263/LB of 2001 and 2608/LB of 2001, we accept the appeals and consequently the impugned orders are set aside.

27. C.M.A./474/Tax(Trib.) ???????????????????????????????????????????????????????????? Appeal accepted.