2009 PTD 1865

1. ABDUS SALAM KHAWAR, MEMBER (JUDICIAL)/CHAIRMAN.--- This appeal has been directed against Order-in-Appeal No.116 of 2007 dated 23-4-2007 of Messrs Khyber Chemical Corporation v. Collector Customs, Central Excise and Sales Tax (Adjudication) Peshawar and the Senior Auditor Sales Tax & Federal Excise, Peshawar.

2. The brief facts of the case are that the Senior Auditor, Collectorate of Sales Tax and Central Excise Peshawar vide contravention report No. ST(Contra)/99/03 dated 10-5-2003 reported that during the course of audit/scrutiny of records of Messrs Khyber Chemical Corporation near Ghani Glass Hattar Haripur, it was observed by the audit team that registered person adjusted input tax amounting to Rs.3,95,200 on purchase of soda ash but failed to produce the Bank draft/instruments despite notices under sections 25 and 37 of the Act, as proof of payment under section 73 of the Sales Tax Act, 1990. Details of the same are as follows:--

2. Date & Month

3. Invoice Number

4. Value Excl, Sales Tax

5. Sales Tax Adjusted as .input tax

6. Additional Tax to be calculated at the time of payment

7. 2-5-2002

8. 1863

9. Rs.118000

10. Rs. 23600

11. -

12. 16-5-2002

13. 1882

14. Rs.118000

15. Rs. 23600

16. -

17. 4-6-2002

18. 1866

19. Rs.118000

20. Rs. 23700

21. -

22. 18-6-2002

23. 1884

24. Rs.118000

25. Rs. 23600

26. -

27. 3-7-2002

28. 01

29. Rs.118000

30. Rs. 23600

31. -

32. 5-7-2002

33. 04

34. Rs.118000

35. Rs. 23600

36. -

37. 12-7-2002

38. 20

39. Rs.118000

40. Rs. 23600

41. -

42. 2-8-2002

43. 51

44. Rs.115000

45. Rs. 23000

46. -

47. 6-8-2002

48. 58

49. Rs.115000

50. Rs. 23000

51. -

52. 16-8-2002

53. 75

54. Rs.115000

55. Rs. 23000

56. -

57. 2-9-2002

58. 103

59. Rs.115000

60. Rs. 23000

61. -

62. 10-9-2002

63. 117

64. Rs.115000

65. Rs. 23000

66. -

67. 4-10-2002

68. 157

69. Rs.115000

70. Rs. 23000

71. -

72. 7-10-2002

73. 163

74. Rs.115000

75. Rs. 23000

76. -

77. 2-11-2002

78. 220

79. Rs.115000

80. Rs. 23000

81. -

82. 8-11-2002

83. 233

84. Rs.115000

85. Rs. 23000

86. -

87. 2-12-2002

88. 282

89. Rs.115000

90. Rs. 23000

91. -

92. Total

93. Rs.1978000

94. Rs.395200

3. A contravention case under section 7 read with section 73 of the Act, sections 11(2), 22(1) (d & e), 26(1), 33(2) (cc), 34(2)(a) & 36(1) of the Sales Tax Act, 1990 was framed against the unit and case papers were submitted for adjudication.

4. An ex parte Order-in-Original No. 186/2005 dated 6-5-2005 was passed against the present appellant. Appeal against that order was also dismissed by the Collector, (appeals) vide order dated 8-5-2007. Aggrieved of the same this appeal has been preferred before this Tribunal.

5. At the very outset the learned counsel for the appellant pointed out that a show-cause notice was issued to the appellant which was duly replied at the time of last hearing of the case at the adjudication stage was 2-3-2004 thereafter for about one year and five months the case was not taken up and suddenly when a representative of the appellant visited Collectorate on 14-2-2007, he was informed that the appeal has already been dismissed and was directed to deposit the outstanding amount. The appellant was taken aback and he immediately filed appeal before this Tribunal after getting the copy of the decision.

6. It is maintained that the appellant was not provided adequate opportunity before the adjudicating authority as he has referred to the proceedings at the adjudication stage which shows that on 20-3-2004, Mr. Abdul Ghafoor appeared and requested for adjournment of date of hearing. The file then came up to the adjudicating authority for completion of adjudication process. In order to give another opportunity for defending the case, 28-8-2005 was for hearing but none appeared. The learned counsel for the appellant maintained that the case be remanded to the adjudicating authority to hear the case afresh. Mr. Sajjad Ali, Auditor for the respondent did not controvert the factual position. He maintained that he has no objection to remand the case to enable the appellant to present his case before the adjudicating authority. I have heard both the parties and perused the available record.

7. Admittedly the case was adjourned on 20-3-2004 and again taken up on 28-8-2005 when no body appeared on behalf of the appellant. There is nothing on record to suggest that the appellant was duly served notices about the date of hearing and he wilfully absented. I feel that the appellant has not been provided adequate opportunity to plead this case at the adjudication stage. The learned Collector (Appeal) has not properly appreciated this point therefore the appeal is accepted and the impugned order is set aside. The case is remanded to the adjudication authority to adjudicate the same afresh after affording proper opportunity to the parties.

8. Announced.

95. C.M.A./100/Tax (Trib) Appeal accepte