COLLECTOR OF SALES TAX (EAST), KARACHI vs CUSTOMS, EXCISE, SALES TAX

ORDER

1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Through this application under sections 1.14 and 151 read with Order 47 rule I, . C.P.C. The appellant, Collector of Sales Tax and Central Excise (East) seeks review of the order, dated 27-9-2002, passed by this Court, whereby the appeal under section 47 of the Sales Tax Act was dismissed in limine.

2. ' Heard learned advocates for the parties. Mr. Abid S. Zuberi, -learned counsel for the respondent No, 2 has objected to the maintainability of the application for the reasons that the matters pertaining to sales tax are governed by provision contained in Sales Tax Act, 1990, which is special law and shall exclude the provision contained in C.P.C. Which is a general law. Learned counsel for the appellant has conceded that there is no provision for review of the order passed by this Court in Sales Tax Act,, 1990 but has contended that the provisions of C.P.C. Are applicable.

3. We do not agree with the submission of learned counsel for the appellant, for the simple reason that the Sales Tax Act is a complete -code in itself and a special law shall exclude the provisions contained in general law. 'The Sales Tax Act contains all the substantive as well as procedural law, pertaining to the charge/levy, assessment and appeals pertaining to the Sales Tax. Mr. 'Raja M.

4. Iqbal, learned counsel for the appellant has submitted that this Court can exercise the review jurisdiction under the inherent powers, vested in it, under section 151, C.P.C. Civil Procedure Code is not applicable' at all, therefore, the question of exercise of inherent jurisdiction under C.P.C. Does not arise.

5. Leaving aside the C.P.C., it would not be covered under inherent jurisdiction, exercised by every Court, because the matters pertaining to review and appeal do not fall within the purview of inherent jurisdiction, as they are neither incidental nor ancillary to the main proceedings. The matters, such as correction of arithmetic error or any mistake, which does not require independent examination can be held within the inherent jurisdiction of every Tribunal, Court or Judicial Authority. However, by now, it is settled proposition of law that power of review or appeal cannot be exercised under the inherent jurisdiction and has to be conferred specifically by law. Since no such power is vested in this Court under Sales Tax Act, therefore, we are of the considered opinion that the review application is not maintainable.

6. ' Notwithstanding, the above finding on the point of maintainability of the review application, we find no merits in the review application as well. The reason being that Mr. S. Abid Zuberi has pointed out that the appeal under section 47 of the Sales Tax Act, 1990 is confined to the question of law, arising out of order under section 46 of the said Act. The appellant initially proposed 14 questions of law and it was pointed out to the learned counsel for the appellant that the questions as proposed were not in accordance with law. Learned counsel for the appellant sought time to file amended proposed questions of law. He, thereafter filed two questions of law only.

7. ' The learned Advocate& for the parties were heard and after arguing at some length, the learned counsel for the appellant conceded that even the questions proposed subsequently do not arise out of the order of Tribunal.

8. ' During the course of arguments, both the learned Advocates agreed that the case of Department is that refund was wrongly allowed to the respondent and, therefore, show-cause notice was issued under section 36 of the Sales Tax Act, 1999, as to why the amount refunded to the respondent may not be recovered. It was pointed out by Mr. Abid S. Zuberi, learned counsel for the respondent that in order to ascertain the question pertaining to refund, the Tribunal appointed a Commissioner, who submitted a detailed report, copy thereof was supplied to the Sales Tax and Central Excise Department on 20th August, 2000.

9. ' The Tribunal decided the Appeal on 18-10-2001, after about one year two months of the submission of Commissioner's report. The Tribunal specifically observed that no cross-objection to the report were ever filed by the department. It has further observed that no objection was raised even at the time of hearing and thus the departmental demand was not justified on merits. The Tribunal further observed that the Department shall be deemed to have accepted the contents of Commissioner's report according to which refund was rightly allowed and was not open io any exception. With these observations the Tribunal allowed the appeal.

10. ' Mr. Abid S. Zuberi, learned counsel for the respondent has further pointed out that the learned Tribunal decided the issue mainly on appreciation of facts contained in the Commissioner's report and no question of law was deliberated upon or decided.

11. ' Learned counsel for the appellant was not able to rebut the narration of facts submitted by Mr. Abid S. Zuberi..

12. ' In the above circumstances, it was held that question proposed by the appellant do not arise out of order of the Tribunal and consequently the appeal was dismissed in limine.

13. ' At this stage, Mr. Raja M. Iqbal, learned counsel for the appellant contends that the objections were filed before the Tribunal which were not considered. However, Mr. Abid S. Zuberi has pointed out that no such ground was taken in the memo. Of appeal and therefore, at this stage the appellant cannot be allowed to take a new ground, which could be taken by amendment in the memo. Of appeal only. At this belated stage such question of fact cannot be allowed to be raised. Moreover, if the objections were filed, as alleged now, the counsel for department ought to have taken such plea before Tribunal at the time of final argument and the appellant could have taken such plea in the memo. Of appeal filed before this Court.

14. ' Mr. Raja Mohammad Iqbal has stated that at the time of filing of appeal no such instruction was given to him by the departmental officers and consequently the fact now sought to be raised could not find place in the memo of appeal.

15. The review is not meant for such negligent and indolent persons, because it is specifically provided in Order XLVII, Rule 1(c) that a person aggrieved from a decree or order can submit a review application if he has discovered a new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made.

16. ' In the present case, the learned counsel for the appellant has not been able to show that the facts sought to be raised in the review application, could not come to the knowledge of the appellant after due, and diligent search. If the objection was filed in the Tribunal, as alleged, and it was not considered by the Tribunal, it ought to have been in the knowledge of the concerned departmental officer. Now the only course open to the competent authorities is to take suitable appropriate action against the delinquent officials of the department and to recover the losses caused to State Revenue from their salary.