Versus Khubaib Ahmad , Manzoor Hussain Shah

ORDER

The Registered Person is in appeal against order, dated 29-5-2008 passed by Collector (Appeals), whereby first appeal was dismissed as barred by 27 days from the limitation of 30 days as provided under section 45B of the Sales Tax Act, 1990.

2. Learned counsel for the appellant submitted that the Order-in-Original was passed at the back of the appellant as neither show-cause notice nor any other notice during the proceedings was ever served. Even Order-in-Original was not served upon the appellant, he added. Learned counsel, explaining the delay, submitted that the appeal was filed by obtaining an uncertified copy from the department. The DR has supported the order of Collector (Appeals) by submitting that the limitation was required to be explained explicitly with evidence by the appellant, which he failed to do before the first appellant forum. Learned counsel for the appellant, at this stage, produced copies of invoices against which the refund was claimed alongwith other supporting documents and submitted that the claim of refund is verifiable even today, however, the Registered Person was proceeded in absentia, therefore, could not defend the allegations contained in the show cause notice.

3. After hearing learned representatives of both the parties, we are inclined to agree that the appellant was prevented to substantiate its claim of refund, hence was condemned unheard. In our view the Collector (Appeals) should have examined the reasons of delay sympathetically, when admittedly the Registered Person was proceeded ex parte during adjudication proceedings. Even otherwise the refund, if finally determined, is the money of the Registered Person, which should not be denied to him on technicalities. Keeping in view the copies of supporting documents produced before us it would be just and appropriate to provide the appellant a chance to prove the claim of refund. Both the orders below are vacated and the case is remanded back to the Adjudication Officer with directions to provide the appellant an ample opportunity of being heard and pass a fresh and speaking order after examining supporting documents to be produced by the appellant before him. The Registered Person is directed to appear before the Adjudication Officer within 15 days from the receipt of this order, who shall pass the order, as directed above, within 60 days from the day of appellant's appearance before him.

Appeal is disposed of accordingly.

C.M.A./82/Tax (Trib.) Order accordingly.