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Appeal No. 68/ST/IB of 2007, decided on 14th January, 2008.

----SS. 73, 37 & 25---Certain transactions not admissible---Registered person adjusted input tax on purchase of soda ash but failed to produce the Bank draft/instruments despite notices under Ss. 25 and 37 of the Sales Tax Act, 1990, as proof of payment under S. 73 of the Sales Tax Act, 1990---Ex parte order in original was passed and appeal against such order was also dismissed by the First Appellate Authority---Appellant pointed out that a show-cause notice was issued which was duly replied at the time of last hearing of the case at the adjudicating stage, therefore, for about one year and five months the case was not taken up---Appellant stated that on visit of Collectorate, he was informed that appeal had already been dismissed and he was directed to deposit the outstanding amount---Validity---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---Nothing was available on record to suggest that the appellant was duly served notices about the date of hearing and he wilfully absented---Appellant had not been provided adequate opportunity to plead the case at the adjudication stage---First Appellate Authority had not properly appreciated this point therefore, the appeal was accepted and the order was set aside---Case was remanded to the adjudication authority to adjudicate the same afresh after affording proper opportunity to the parties. Danish Ali Qazi for Appellants. Sajjad Ali, Auditor for Respondent. Date of hearing: 14th January, 2008.

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:--

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

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