BROTHERS ENGINEERING (PVT.) LTD. vs DEPUTY COLLECTOR SALES TAX and others

' MUHAMMAD SAYEED AKHTAR, J.---As common question of law and fact is involved in S.T.A. No, 145 of 2003, S.T.A. No,146 of 2003, S.T.A. No,139 of 2003, S.T.A. No,140 of 2003 and S.T.A. No,141 of 2003 we propose to dispose of all these appeals by a common judgment.

2. The appellant in Appeals Nos. 145 of 2003 and 146 of 2003 is a registered person under the Sales Tax Act, 1990 before 1st of July, 2000. During audit of the appellant's record for the year, 1998-99, Audit Team reported that the appellant did not charge sales tax on the taxable supply of Mills Roller (a component part of the Sugar Mills Machinery used for crushing sugarcane) and claimed redemption under S.R.O. No,582(I)/1998, dated 12-6-1998. Show-cause notices were issued on 21-11- 2001 to the appellant for recovery of Rs, 24,78,218 as sales tax alongwith additional tax and penalty under section 33 of the Sales Tax Act, 1990. The appellant contested the same however the learned Deputy Collector passed the Order-in-Original No,47 of 2002 on 17-1-2002 for payment of sales tax amounting to Rs, 24,78,218 along with additional tax under section 34 and penalty of 5% of the principal amount of sales tax under section 33(2)(cc) of the Sales Tax Act, 1990. Appeals were preferred before the learned earned Collector which were dismissed on 13-11-2002. On further appeals before the Customs, Excise and Sales Tax Appellate Tribunal, Lahore the same were partly accepted. The imposition of penalty of 5% of the amount of tax was set aside. The order to the extent of payment of sales tax along with additional tax was confirmed vide order, dated 1-7-2003.

' The Revenue has also filed three appeals against the same impugned order challenging the remission of the penalty by the learned Appellate Tribunal.

3. The learned counsel for the appellants has placed on record a copy of the Circular Letter No,l/5- STB/2003, dated 7-6-2003 stating that the past liabilities of the appellants have been waived under S.R.O. No,500(I)/2003, dated 7th June, 2003. Learned counsel submits that it is not a past and closed transaction as the appellants have not deposited the sales tax.

' Conversely the learned counsel for the Revenue stated that the notification does not apply retrospectively and that the penalty has been illegally remitted by the learned Tribunal.

4. We have considered the arguments of both the learned; counsel and perused the said Circular. It appears that under the said Circular certain reduction/waiver has been granted on the past liabilities of sales tax to the registered persons. Circular in fact requests the Collectors to go through all the budgetary amendments and notifications etc. For their proper comprehension and application. The facility of exemption from the past liabilities appears to have been made to encourage new registration and to promote compliance by the existing registered/ enrolled persons. It is well-settled that a notification or an executive order adversely affecting the rights of any person cannot operate retrospectively but if the same confers any benefit, it can be made applicable retrospectively. See Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others (1992 SCM R 1652), Federation of Pakistan and others v. Shaukat Ali Mian and others (PLD 1999 SC 1026). We, therefore, allow these appeals, set aside the impugned orders and remand the cases to the Collector Sales Tax for determination of the effect of the afore-mentioned Circular/Notification and their application to the instant cases.