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Appeal No.S.109/PB of 2006, decided on 25th March, 2009.

----S.57---General Clauses Act (X of 1897), S.21---Civil Procedure Code (V of 1908), O.XLVII---Correction of clerical errors etc.---Application for review of appeal order under S.57 of the Sales Tax Act, 1990---Validity---Refusal to review shall not give fresh order to file appeal against it---Review application filed under S.57 of the Sales Tax Act, 1990 was undoubtedly, not maintainable as the said section related to correction of clerical or arithmetical error in any assessment, adjudication order or decision--Clerical error was an error iii writing or typing, whereas arithmetical error was an error of calculation--Rectification order like the original order was appealable, if issued---Review application, filed before the Collector (Appeals) under S.57 of the Sales Tax Act, 1990 did not relate to any clerical or arithmetical error rather it involved certain, factual and legal issues---Cause and ground of review was beyond the scope of S.57 of the Sales Tax Act, 1990 as it squarely deals only with removal of clerical or arithmetical error---Similarly, review under S.21 of the General Clauses Act, 1897 relating to issues involved was also irrelevant as the scope of the said section was restricted only to an executive order and delegated legislation---Review application under S.21 of the General Clauses Act, 1897 thus was void ab initio and nullity in the eyes of law---Likewise, even if the review application before the Collector (Appeals) by the appellant-department was considered under Order XLVII of the Civil Procedure Code, 1908 for having been filed on 41st day, then the same was barred by 26 days without any plausible explanation given by the appellant-department in this behalf. Ghulam Hussain v. Kanwar Ashiq Ail Khan 1980 PLD SC 198 and 1998 SCMR 307 rel.

----S.45---Appeal---Order of decisions appealable to Appellate Tribunal---Any decision or order passed by Collector or an Additional Collector Sales Tax under S.11, 36 or 45 of the Sales Tax Act, 1990; any order passed by the Collector of Sales Tax (Appeals), under S.45-B of the Sales Tax Act, 1990 and any order passed by the Board or the Collector of Sales Tax under S.45-A of the Sales Tax Act, 1990 are appealable.

----S.57---Correction of clerical errors etc.---Review of order of appeal---Only S.57 of the Sales Tax Act, 1990 was invoked by the appellant/department for review of order-in-appeal passed under S.45-B of the Sales Tax Act, 1990---Had the Collector (Appeals) entertained the review application, then it would have been an order or decision or direction passed/issued under S.57 of the Sales Tax Act, 1990 and not under 5.45 13 of the Sales Tax Act, 1990---Appellate Tribunal was coram non judice to entertain such appeal.

---S.46(1)---Appeal to Appellate Tribunal---Limitation---Computation of---Period of limitation was to be computed from the elate when the decision or order was received by the aggrieved person.

----S.10---Limitation Act (IX of 1908), S.4---Computation of time---Although the parties themselves could not extend the time for doing an act in any court or office, yet if the delay was caused not by an act of their own, but by some act of the Court or office itself, such as the fact of the court or office being close, they were entitled under S. 10 of the General Clauses Act, 1897 to do the act on the next day on which the court or office was open i.e. on the first opening day.

----Appeal---Limitation--Condonation of delay---Appellate Tribunal had been empowered to condone the delay in filing the appeal if it was satisfied that the appellant had sufficient cause for not filing the appeal within time---Expression "sufficient cause" ought to receive a liberal construction so as to advance the cause of substantial justice by disposing matters on merits. Montreal Street Railway Company v. Normandin (1917) AC 170 (PC) rel.

----Appeal---Limitation---Condonation of delay---Sufficient cause----Substantial justice was a material consideration when construing sufficient cause"---Nature of the case and consequences of refusing to condone delay necessarily had to he taken into account---Factors such as the monetary stakes involved and the importance of the issue raised would be relevant of the purpose---Postal delay of unusual type resulting in late filing of appeal will constitute sufficient cause for condoning the delay---Word "sufficient" as used in the phrase "sufficient cause" means "adequate, enough, as much as may be necessary, equal or fit for end proposed, and that which may be necessary to accomplish an object of such quality, number, force, or value as to serve a need or purpose". Nissen v. Miller, 44 N.M. 487, 105 P.2d 324, 326 rel.

----Ss. 46(2) & 57--General Clauses Act, (X of 1897), S.21---Civil Procedure Code (V of 1908), O.XLVII---Appeal to Appellate Tribunal---Condonation of delay---Appeal was barred by 38 days---Appeal was to he filed within 60 days i.e. on or before 5-5-2006 whereas the appeal had been filed on 7-6-2006 along with application for condonation of time bar wherein condonation was sought on the ground that the appellant/Collectorate filed an application for "review of Order-in-Appeal under S.57 of the Sales Tax Act, 1990 read with Order XLVII of the Civil Procedure Code, 1908, further read with S.21 of the General Clauses Act, 1897, which application was refused to be entertained by the Collector (Appeals)---Appellant himself admitted in application for condonation of delay that their appeal against the main order was time-barred, with no plausible explanation given thereof--- Appeal was not sustainable being barred by time and for lack of any cause for condonation. Montreal Street Railway Company v. Normandin (1917) AC 170 (PC) and Nissen v. Miller, 44 N.M. 487, 105 P.2d 324, 326 rel.

---Appeal-- Limitation---Condonation of delay---Delay of each day is to be explained for Condonation. Federation of Pakistan v. Jamaluddin, 1996 SCMR 727; Income Tax Officer v. Sheikh Miraan Bakhsh and 25 others, 1986 SCMR 1255 and MEO and another v. Syed Qamoos Shah and 20 others, PLD 2004 Pesh. 40 rel.

---Appeal---Limitation---Condonation of delay-Automatic condonation of delay----Principles---Where the appeal is time-barred and the appellants had made an application for its condonation, but it was not adverted to by the Tribunal and the appeal was admitted to regular hearing, the delay stood automatically condoned. Customs Appeal No. 532/LB of 1999, 2002 Law Notes 207 rel.

----Precedent of one Bench is binding on the other Bench of the Appellate Tribunal unless it is set at naught by decision of the Full Bench of the Appellate Tribunal. 2005 PTD 501 rel.

---Appeal---Limitation---Condonation of delay---Appeal with application for condonation of delay---Appeal was filed along with application for condonation of delay---Appeal was admitted by the Appellate Tribunal to regular hearing and even operation of the Order-in-Appeal was suspended, but the application for condonation was not adverted to by the Appellate Tribunal---Delay in filing the appeal stood automatically condoned. Customs Appeal No. 532/LB of 1999, 2002 Law Notes 207 and 2005 PTD 501 rel.

---S.46---Finance Act (III of 2006), Preamble Appeal to Appellate Tribunal---Competent authority for filing of appeal---Tax payer/registered person contended that appeal had not been filed in proper format and rnoreso same had been filed by the Assistant Collector of Legal Division of the Collectorate, who was not competent to do so under the law---Validity---Appeal was filed by the competent person i.e. Assistant Collector of Legal Division of the Collectorate---At the time of filing the appeal, the words "an Officer of Sales Tax not below the rank of an Additional Collector" were substituted for the words "the Sales Tax Department" by the Finance Act, 2006; thus, the then Assistant Collector of Legal Division was competent to file an appeal on behalf of the Sales Tax Department on the date of filing the appeal i.e. 7th June, 2006.

---Format of appeal---Where an order or decision is circumscribed by no specific form or format, an appeal against such order of decision cannot be circumscribed by any specific form or format. 2006 SCMR 1670 = 2006 PTD 2277 rel.

---Ss. 57, 45, 45-B & 46---General Clauses Act, (X of 1897), S.21-Civil Procedure Code (V of 1908), O.XLVII---Correction of clerical errors etc.---Application for review of order of appeal---Estoppel--Validity---Appellant-Department had erred by tiling a review application before the Collector (Appeals), who rightly returned time said review application to the appellant-department for lack of jurisdiction--Refusal to review shall not give fresh order to file an appeal against it as the same review application was not sustainable in the eyes of law, besides being already time-barred by 26 days, without any plausible explanation---Appellant-department was estoppel by his own conduct by filing a review petition/application before the Collector (Appeals), who lacked jurisdiction to entertain review application involving factual and legal issues under S.57 of the Sales Tax Act, 1990--Order or decision under S.45-B of the Sales Tax Act, 1990 after it had been announced could not be modified or altered or amended except for clerical or arithmetical error under S.57 of the Sales Tax Act, 1990 or under S.46 of the Sales Tax Act, 1990 after filing an appeal against an "order" or "decision" passed under S.45-B of the Sales Tax Act, 1990. Ghulam Hussain v. Kanwar Ashiq Ali Khan 1980 PLD SC 198 and 1998 SCMR 307 rel. Barrister Syed Mudassir Ameer, Haroon Khattak, Sr. Auditor and Dost Muhammad, Sr. Auditor for Appellants. Isaac Ali Qazi and Niaz Muhammad for Respondent. Dates of hearing: 27th January, 4th February and 17th February, 2009.

The Collector of Sales Tax and Federal Excise, Peshawar (hereinafter called as the appellant) has filed this appeal under section 46 of the Sales Tax Act, 1990 (hereinafter referred to as the Act) against Order in-Appeal No.70 of 2006, dated 25-2-2006, passed by the Collector of Customs, Sales Tax and Federal Excise (Appeals), Peshawar. 2. Precisely, the stated facts of the case are that the respondents (Messrs Niaz Muhammad General Order Suppliers, Peshawar) filed three exports-based refund claims for the tax periods October, 2004, November, 2004 and December, 2004, respectively under section 10 of the Sales Tax Act, 1990 (hereinafter referred to as the Act). After investigative audit and verification of these refund claims, the sales tax department alleged that respondents entire claim of (Rs.9,175,710) was based on fake and bogus invoices. Details as under:--

3. Accordingly, the claim was held inadmissible under section 2(37), 8(1)(d), 10(4) and 73 of the Act read with Rule 8 of S.R.O. 575(I)/2002, dated 31-8-2002. Besides, a penalty equal to the amount of refunds (claimed) was also round to be recoverable from the appellants under sections 33(4)(a), 33(4)(f) and 36(1) of the Act. Thus, a show-cause notice was issued to the respondents by the Deputy Collector, Sales Tax (Refunds), Peshawar, who vide his Order-in-Original No.48 of 2005, dated 26-9-2005, ordered as under:--

"(4) I have gone through the case record, written and verbal submissions of the claimant and have come to the conclusion that:

(i) Messrs Tariq Muneer Traders, Hafizabad (supplier of the claimant) is blacklisted w.e.f. 22-1-2003 and the claimant has declared purchases from the said blacklisted person in October, November and December, 2004. Refund to the extent of Rs.2,310,150 is, therefore, rejected under section 2(37), 8(1)(d) and 10 read with Rule 8 of S.R.O. 575(I)/2002, dated 31-8-2002 of the Sales Tax Act, 1990. Penalty equal to the amount of tax is also imposed under section 33(4)(a), 33(4)(1) and 36(1) of the Sales Tax Act, 1990.

(ii) The claimant has declared purchases from Messrs Azhar Corporation, Faisalabad vide Invoice Nos.4190 and 4197 both, dated 19-10-2004. During verification, Collectorate of Sales Tax and Federal Excise, Faisalabad vide letter C. No.STR/VER/03/906, dated 22-3-2005 has forwarded declaration of Messrs Azhar Corporation has enclosed both these invoices issued on 19-10-2004 to unregistered person Haji Zarr Gul, Haji Anwar Gul Soap Dealer, G.T. Road, Peshawar and not to the claimant. The claimant has tampered these invoices and written his name, registration number and also changed the dates from 19-10-2004 to 5-10-2004 to cover their shipment, which was made on 10-10-2004. Refund of Rs.65,255 is, therefore, rejected under sections 2(37), 8(1)(d) and 10 read with Rule 8 of S.R.O. 575(I)/2002, dated 31-8-2002 of the Sales Tax Act, 1990. Penalty equal to the amount of tax is also imposed under sections 33(4)(a), 33(4)(f) and 36(1) of the Sales Tax Act, 1990.

(iii) The claimant has declared purchases of 30,276 pieces of "100% pure new leather garments (export quality) leather waist coat" from Messrs Play Field Supplies, Sialkot. These invoices were sent to Collectorate of Sales Tax and Federal Excise, Gujranwala for verification. Letter C.No.St/Invoice-verification/ 649/Grw/814, dated 30-6-2005 received from Assistant Collector (Verification Cell), Sales Tax and Federal Excise, Gujranwala verifying the invoices of Messrs Play Field Supplies, Sialkot issued to the claimant. This office sought genuineness of this letter from Collectorate of Sales Tax and Federal Excise, Gujranwala along with other letters. In reply, the Assistant Collector (Verification Cell) Sales Tax and Federal Excise, Gujranwala vide letter C.No.St/Invoice-verification/HQ/ 369/05/218, dated 7-7-2005 declared these letters as fake and informed that Messrs Play Field Supplies, Sialkot is untraceable and this tact has also .been communicated to Collectorate of Customs, Peshawar. Therefore, the invoices were declared fake.

Another letter C. No.St/invoice-verificatoin/HQ/467/2005/1011, dated 1-9-2005 received bearing signature of Assistant Collector (Verification Cell) Sales Tax and Federal Excise, Gujranwala verifying the invoices issued by Messrs Play Field Supplies, Sialkot, to the claimant. Genuineness of this verification letter was sought from the concerned Assistant Collector. Assistant Collector (Verification Cell) Sales Tax and Federal Excise, Gujranwala who, vide letter C.No.St/Invoice-verification/HQ/467/2005/1079, dated 17-9-2005 has confirmed the genuineness of said verification letter. However, the claimant failed to produce proof of payment made to Messrs Play Field Supplies, Sialkot as required under section 73 of the Sales Tax Act, 1990. It is, therefore, established that the claimant has violated the provisions of section 73 of the Sales Tax Act, 1990.

Furthermore, the Collector of Customs, Peshawar has drawn sample of leather waist coat from the consignment exported by the claimant. During security, the said waist coats were found second hand, Show-cause notice has to be issued to the claimant by competent customs authorities. Refund of Rs.3,383,340 is, therefore, rejected under sections 2(37), 8(1)(d) and 10 read with Rule 8 of S.R.O. 575(I)/2002, dated 31-8-2002 of the Sales Tax Act, 1990. Penalty equal to the amount of tax is also imposed under sections 33(4)(a), 33(4)(1) and 36(1) of the Sales Tax Act, 1990.

(iv) The claimant has declared purchases of 14952 pieces of new leather waist coat from Messrs Hi Beam Int. Sialkot vide Invoice No.213, dated 10-12-2004. During investigative audit, the claimant provided payment proofs of Messrs Hi Beam Int. Sialkot. The audit team verified the admissibility of these payment proofs from Messrs Askari Commercial Bank, Square Branch, Peslniwar City. During verification, it is observed that Messrs. Hi Beam Int. Sialkot has also maintained their business account in the Askari Commercial Bank, Peshawar. The audit team further investigated the name of the accountholder of the account titled as Messrs Hi Beam Int. Sialkot through registration form of Messrs Hi Beam Int. Sialkot on line and the owner of the said business is Mian Najam Sohail, while in the Askari Bank record, the owner of Messrs Hi Beam Int. Sialkot is Mr. Shahid Iqbal, which clearly indicates the inadmissibility of the payment proofs of Messrs Hi Beam Int. Sialkot. The claimant in his reply states that mentioned section refers only to business account, which means business firm name. Viewpoint of the claimant is incorrect as the business bank account means a bank account utilized by the registered person for business transactions, declared to the Collector in whose jurisdiction he is registered.

The invoice was also sent to Collectorate of Sales Tax and Federal Excise, Gujranwala for verification. Verification letter C.No.St./Invoice-verification/645/Grw/779, dated 25-6-2005, declaring this invoice along with other invoices issued by the said supplier as correct bearing signature of Assistant Collector (Verification Cell) Sales Tax and Federal Excise, Gujranwala. This office requested to confirm the genuineness of this verification letter. In. response, the Assistant Collector (Verification Cell) Sales Tax and Federal Excise, Gujranwala vide letter C. No.ST/Invoice-Verificatoin/HAQ/369/05/218, dated 7-7-2005 has declared this letter along with other two letters as fake.

Another verification letter C.No.St/invoice/verification/645/ Grw/1495, dated 6-8-2005 bearing signature of Assistant Collector (Verification Cell) Sales Tax and Federal Excise, Gujranwala was received, verifying the invoices of Messrs Hi Beare Int. The concerned Assistant Collector telephonically confirmed that the said letter is fake.

Another verification letter C.No.St/Invoice-verification/HAQ/511/2005/967, dated 27-8-2005 bearing signature of Assistant Collector (Verification Cell) Sales Tax and Federal Excise, Gujranwala was received, verifying the invoices of Messrs Hi Beam Int. The concerned Assistant Collector (Verification Cell) Sales Tax and Federal Excise, Gujranwala has confirmed genuineness of this verification letter vide C.No.ST/Invoice verification/HQ/467/2005/1079, dated 17-9-2005. The matter was forwarded to Deputy Collector (Investigative Audit Cell) Sales Tax and Federal Excise, Peshawar for comments. (Deputy Collector Investigative Audit Cell) has taken stand of their audit report and confirmed that the payment proofs are fake.

However, finally another letter C.No.ST/invoice-verification/ HQ/511/2005/763, dated 24-9-2005, was received from the concerned Assistant Collector (Verification Cell) Sales Tax and Federal Excise, Gujranwala stating that Messrs Hi Beam Int. has not issued any invoice during the tax periods of 10/2004, 12/2004 and 01/2005. Therefore, invoice, dated 10-12-2004 claimed by the claimants is fake.

Furthermore, the Collectorate of Customs, Peshawar has drawn sample of leather waist coat from the consignment exported by the claimant. During scrutiny, the said waist coats were found second hand. Show-cause notice has to be issued to the claimant by competent customs authorities. Refund of Rs.1,670,886 is, therefore, rejected under sections 2(37), 8(1)(d) and 10 read with Rule 8 of S.R.O. 575(1)/2002, dated 31-8-2002 and 73 of the Sales Tax Act, 1990. Penalty equal to the amount of tax is also imposed under sections 33(1)(a), 33(4)(1) and 36(1) of the Sales Tax Act, 1990.

(v) The claimant has declared purchases of 15334 pieces of new leather waist coats in October, 2004 from Messrs Xcellentrade Int. Peshawar. During verification, it has been observed that Messrs Xcellentrade Int. has declared purchase of these items from Messrs Hi Beam Int. Sialkot in October, 2004., Collectorate of Sales Tax and Federal Excise, Gujranwala has verified vide their letter C.No.St/Invoice-verification/HQ/511/2005/763, dated 24-9-2005 that Messrs Hi Beam Int. has not issued any invoice during the tax periods of 10/2004, 12/2004 and 1/2005. It is, therefore, established that no output tax of these purchase invoices were paid to Government Exchequer.

The claimant and Messrs Xcellentrade Int. have tried to get refund on fake invoices as it is evident from track record that no actual purchases have been made.

Furthermore, the Collectorate of Customs, Peshawar has drawn sample of leather waist coat from the consignment exported by the claimant. During scrutiny, the said waist coat were found second hand. Show-cause notice has to be issued to the claimant by competent customs authorities. Refund of Rs 1,746,079 is, therefore, rejected under sections 2(37), 8(1)(d) and 10 read with Rule 8 of S.R.O.575(I)/2002, dated 31-8-2002 of the Sales Tax Act, 1990. Penalty equal to the amount of tax is also imposed under sections 33(4)(a), 33(4)(f) and 36(1) of the Sales Tax Act, 1990. 4. Being aggrieved by the above Order-in-Original, the respondents filed an appeal before the Collector of Customs, Sales Tax and Central Excise (Appeals), Peshawar, who vide his Order-in-Appeal No.70 of 2006, dated 25-2-2006, ordered as under:--

"(8) I have gone through the case record and considered the verbal as well as written arguments of both the parties. The supplier-wise perusal of the case record has led me to conclude as under: --

(a) Messrs Play Field Supplies, Sialkot.

As evident from the impugned Order-in-Original, the sales tax invoices issued by the supplier have finally been verified by the Collectorate of Sales Tax and Federal Excise, Gujranwala and the same fact has also been endorsed by the respondent-Collectorate in the para-wise comments stated above. The sole ground on which the refund claim of the appellant was rejected is the non-production of proof of payment made to the supplier. As pleaded by the appellant in the re-joinder to the parawise comments and verbal arguments during the hearing held on 30-1-2006, the non-production of proof of payment to the supplier or violation of section 73 in case of Messrs Play Field Supplies, Sialkot was not a part of show-cause notice issued to the appellant and neither the DC (Refund) mentioned this point in the show-cause notice issued to the appellant nor any opportunity of being heard was provided to them to properly defend the case according to section 11(4) of Sales Tax Act, 1990 read with Rule 8 of the S.R.O. 575(I)/2002, dated 31-8-2002 (Sales Tax Refund Rules). It has been held by the Honourable Supreme Court of Pakistan and the other Superior Courts that without completion of prerequisite of show-cause notice and supply of grounds/reasons in clear and explicit words to ascertain what allegations arc against the registered person, no straight forward order could be passed against him and the failure of the authorities issuing show-cause notice to disclose such grounds/reasons may render the order invalid and it would he without legal effect/legal authority. It is provided under section 11(4) of Sales Tax Act, 1990 that in the absence of a particular allegation or charge in the show-cause notice against the registered person by the Adjudicating Authority, no order could he passed and any order (if so passed) is illegal and without lawful authority. The above issue has also been decided by the Lahore High Court as well the Honourable Supreme Court of Pakistan in various cases.

In the present case, the respondent D.C. (Refund) did not mention in impugned show-cause notice the allegation of non-production of proof of payment under section 73 to Messrs Play Field Supplies, Sialkot by the appellant and hence complete grounds/reasons pertaining to the offence made by the appellant were not stated by the Adjudicating Authority as required under Rule 8 of S.R.O. 575(I)/2002, dated 31-8-2002 and section 11(4) of the Sales Tax Act, 1990. In view of the above legal point, 1 am inclined to conclude that the provisions of section 11(4) and Rule 8 of the Refund Rules, 2002 were not fulfilled by the D.C. (Refund). Also the decisions of the Superior Courts including the Supreme Court of Pakistan are available on the same point. Therefore, I accept the appeal in the case of Messrs Play Field Supplies, Sialkot.

(b) Messrs Xcellentrade International Peshawar.

As evident from the contents of the impugned show-cause notice, the case of Messrs Xcellentrade International was not a part of show-cause notice and neither the D.C. (Refund) mentioned the case of Messrs Xcellentrade in the show-cause notice issued to the appellant nor any opportunity of being heard was provided to them to properly defend the case according to section 11(4) of the Sales Tax Act, 1990 read with Rule 8 of the S.R.O. 575(I)/2002, dated 31-8-2002 (sales tax refund rules). Furthermore, the respondent Collectorate neither issued the show-cause notice to Messrs Xcellentrade International for the inadmissible input tax credit claimed on Messrs Hi Beam invoices nor the case has been established on them vide a specific order. The appellants have property obtained tax invoices from Messrs Xcellentrade and sales tax thereon has been deposited by Messrs Xcellentarde under section 6 of the Sales Tax Act, 1990.

In view of the above facts and legal point, I also accept the appeal in the case of Messrs Xcellentrade and my conclusion is the same as in the case of Messrs Play Field Supplies, Sialkot.

(c) Messrs Azhar Corporation, Faisalabad.

As pleaded by the appellant, due to the lack of communication and misconception, the order for the purchase of goods was placed by the employees of the appellant and the supplier had mistakenly issued the tax invoices in the name of employees of the appellant. Therefore, during the hearing proceedings, the appellant did not contest the case of Messrs Azhar Corporation, Faisalabad and withdrew from the refund claim pertaining to the above supplier. The penalty imposed under the impugned Order-in-Original is waived off due to the aforesaid grounds.

(d) Messrs Hi Beam International, Sialkot

The refund claim of the appellant pertaining to Messrs Hi-Beam International, Sialkot was rejected on the grounds of fake sales tax invoices and violating of section 73 of the Sales Tax Act, 1990. It is pertinent to mention here that the Collectorate of Sales Tax and Federal Excise, Gujranwala delivered various contradictory verification reports to the respondent--Collectorate on the basis of which the impugned Order-in-Original was passed against the appellant. The AC (Verification Cell) Gujranwala declared the impugned invoices of Messrs Hi Beam, Sialkot as correct and genuine vide his two consecutive letters, dated 27-8-2005 and 17-9-2005, but just after seven days, he contradicted his above mentioned verification reports and wrote to the respondent-Collectorate that the supplier Messrs Hi Beam, Sialkot had not issued any tax invoices from 10 of 2004 to of 2005, although the record produced by the appellant showed that the same supplier declared turnover of Rs.32.7 million and deposited Rs.24577 as sales tax in the regular monthly return of 12 of 2004. In order to ascertain the real position in the above case, information was sought by this office from the Collectorate of Sales Tax and Federal Excise, Gujranwala vide letter C. No.ST(457)/05/163, dated 3-2-2006, followed by a reminder vide letter C. No.ST(457)/05/191, dated 14-2-2006. The concerned Collector replied vide their letter C.No.ST(I&P)/ GRW/93/2005/425, dated 22-2-2006 and reported the same position as reported by AC(Verification Cell) Sales Tax and Federal Excise, Gujranwala vide letter C.No.ST (Invoice-Verification/HQ/511/2005/763), dated 24-9-2005 whereunder, it has been confirmed that Messrs Hi Beam, Sialkot have not conducted any business since the dale of registration nor issued any invoice.

Based on the report of the Gujranwala Collectorate vide the above referred letter, dated 22-2-2006, I uphold the decision of the DC (Refund) and conclude that the appellants are not entitled to get refund on the invoices issued by Messrs Hi Beam International, Sialkot. However, the appellants have met all the requirements of exports of goods and all the documents pertaining to exports are verified. The department verified the invoices of Messrs Hi Beam International, Sialkot three times as correct which were subsequently denied and declared as fake. In order to avoid the contradictory verification reports, .he department was required to conduct thorough investigation in this matter and after the complete investigation, the verification of invoices should have been reported to respondent-Collectorate. Therefore, the penalty imposed under the impugned Order-in-Original is unjustified and the same is therefore waived off.

(e) Messrs Tariq Muneer Traders, Hafizabad.

The refund claim pertaining to Messrs Tariq Muneer Traders was rejected on the ground that the supplier is blacklisted with effect from 22-1-2003. The Collectorate of Sales Tax and Federal Excise, Gujranwala has reported this office vide letter C.No. ST/I&P/Grw/93/2000/425, dated 22-2-2006 that Messrs Tariq Muneer were blacklisted vide letter C. No.ST/Admn/Misc/05/2005/Vol.III/1891, dated 8-7-2002. The provisions of blacklisting and suspension of registration were added in the Sales Tax Act, 1990 vide Finance Act, 2003. Complete rules have been laid down in the Sales Tax General Order No.03 of 2004 pertaining to the blacklisting and suspension of registration. But it is observed that the said supplier has been blacklisted since July, 2002 and in spite of being blacklisted have been issuing sales tax invoices as well as filing tax return, as evident from the record produced by the appellants. No legal proceedings under the Sales Tax Act, 1990 have been initiated against the blacklisted supplier by the concerned Collectorate of Sales Tax in whose jurisdiction the supplier is registered.

In view of the above positions, I hereby conclude that since the supplier was blacklisted during the period of issuing of tax invoices, the appellant is not entitled to get refund thereon as envisaged under the Sales Tax General Order No. 3 of 2004 and the decision of DC (Refund) to that effect is upheld. However, since the supplier has been issuing tax invoices, filing monthly tax returns and the appellants were unaware of the fact of the supplier being blacklisted, it is unjustified to impose penalty on the appellant as the department hasn"t initiated any legal action against the supplier Messrs Tariq Muneer under the Sales Tax General Order No.3 of 2004. Therefore, the penalty imposed vide the impugned Order-in-Original is waived off.

(9) The issue of second-hand leather waist coat has been settled through this office Order-in-Appeal No.3537 of 2006, dated 3-2-2006, where-under the appeal of the appellant has been accepted on the grounds stated in the above Order-in-Appeal.

(10) Keeping in view the above overall facts and points of law, I therefore, modify the impugned Order-in Original No.48 of 2005 and direct the DC (Refund) to sanction the refund claim admissible to the appellant pertaining to Messrs Play Field Supplies and Messrs Xcellentrade International, if no any other objection has been raised on the same. The respondent-DC (Refund) is directed to examine each refund claim in future in details and in the case of any inadmissible claim, show cause notice must be issued, categorically specifying therein all the grounds on which it is intended to proceed against the person and the DC (Refund) shall take into consideration the representation made by such person and provide him with an opportunity of being heard on each and every ground. The appeal stands disposed of accordingly." 5. Being further aggrieved by the Order-in-Appeal No.70 of 2006, dated 25 2 2006, the appellants (now respondents in the instant appeal) filed an Appeal No.S.T.93/PB/2003, before this Tribunal, inter alia, on the following grounds:--

(i) that though legitimate refund claims of appellant have been rejected on the alleged non-tractability/black listing etc., of their suppliers, and other alleged procedural lapses, at no stage were the appellants associated in the investigative proceedings, which led the department to the alleged conclusions. Hence, outcome of such unilateral inquiry should not have any credibility in the eyes of law;

(ii) that after an undeniable (and admitted by the department as well) proof of payment of sales tax on the part of the appellants, if the input tax is not allowed to be refunded, it would create a cascading effect of double taxation, which is against the spirit and genesis of value-added-based Sales "lax Act, 1990; and

(iii) that the impugned order is mala fide, arbitrary and violative of the principle laid down by the Supreme Court of Pakistan in Messrs Pfizer Lab of Pakistan v. Federation of Pakistan wherein the august Court has held that:--

"latest judicial trend is to deprecate and discourage withholding of citizen"s money by a public functionary on the plea of limitation or on any other technical plea if it was not legally payable by him."

6. The appellate Tribunal vide its judgment, dated 29-8-2007 decided the Appeal No. S.T. 93/PB/2006, dated 29-8-2007, in the manner as given hereinunder:--

"(5) Having carefully taken into account the (above), briefly recapitulated grounds of appeal, respondent"s objections and rejoinder of the appellants, we agree in principle with the respondent-department that the government should only refund what it was received and that fake and bogus invoices issued by flying traders should not be accepted. However, at the same time, we are also of the firm view that the respondent-department should properly and objectively examine the issues of "non-existence" and "blacklisting" of the (invoice-issuing) suppliers. Moreso, as is in this case, the appellants appear to have come up with certain facts, which need to be verified, thoroughly, to the entire satisfaction of both parties, particularly the issue regarding intimation (to the general public) about blacklisting of a supplier which in this case does not appear to have been issued. Similarly, appellants" contention that their refund claims were cleared by "STARR" also needs to be verified. Besides, there is a multitude of other equally important factors which could also help determining admissibility of an export-based refund claim such as:--

(i) Whether the supplier has actually paid the sales tax amount shown in the invoice issued by him or not This is, perhaps singularly, the most significant of all factors. Alter all, why should the government refund, what it has not received

(ii) Whether the appellants have made payments to the alleged supplier through banking channels/instruments as required under section 73 of the Act"

(iii) Whether the appellants" bank has confirmed issuance of banking document to the alleged supplier

(iv) Whether the contents of shipping bills match with those specified in the alleged tax invoices and

(v) Whether contents of memos/receipts/bills issued by the transport company (to the appellant/supplier) match with those specified the alleged invoices, etc.

(6) Then there is "STARR" as well. An I.T. based network, the STARR performs, inter alia, country-wide integrated sales tax verifications. The data on Non-filing, Nil-filing, Short filing gives a reasonably authentic account of every registered person. Further, STARR based findings should also have been resorted to as in this case, the STARR" initially cleared appellants" refund claims.

(7) Besides, the issue at hand is not new. It has been discussed (and adjudicated upon) at higher judicial fora including other Benches of this Tribunal. The Appellate Tribunal Customs, Sales Tax and Federal Excise, Lahore Bench has held (in the Sales Tax Appeal No. 687/LB/2002, decided on 15-6-2004) that there must be concrete evidence with the Sales Tax Department to declare that a particular unit is a fake unit or an invoice is a fake invoice.

(8) In the light of above discussion and in line with consistent and unanimous views taken by various judicial fora on the subject, we accept the appeal and set aside the impugned Order-in-Original and Order-in-Appeal. The Deputy Collector of Sales Tax (Refunds), Peshawar is directed to re-examine the appellants" claim, inter alia, in the light of parameters discussed in paras. 5 and 6 above and pass a speaking order on merit. Parties shall be afforded adequate opportunities of being heard."

7. Being further aggrieved by the judgment, dated 29-8-2007, the appellants (now respondents in the instant appeal) filed a Tax Reference No.109 of 2007 before the Honourable Peshawar High Court, Peshawar to the extent of two impugned issues, details contained therein, which is still pending disposal by the aforesaid Superior Court and no stay order restraining the operation of the aforesaid judgments, dated 29-8-2007 by this Tribunal has been passed as yet.

8. Similarly, being aggrieved by the Order-in-Appeal No.70 of 2006, dated 25-2-2006, the appellant in the instant appeal filed an application (placed on record), before the learned Collector (Appeals), for review of his aforesaid Order-in-Appeal, dated 25-2-2006, relating only to one impugned issue, under section 57 of the Act, read with Order XLVII of the Civil Procedure Code (Act V of 1908), further read with section 21 of the General Clauses Act, 1897 on the grounds as contained therein, and the aforesaid application was returned by the learned Collector (Appeals), vide his order/decision/direction, dated 10-5-2006, mainly on the ground of lack of jurisdiction to review the order passed by him. Thus, being aggrieved by the said order/ decision/direction, dated 10-5-2006, passed by the learned Collector (Appeals), the appellant filed the instant appeal before this Tribunal, inter alia, on the following grounds:--

(i) that the issue with reference to Messrs Play Field Supplies, Sialkot, the learned Collector (Appeals), has held that the show-cause notice did not mention the point with regard to non-compliance of section 73 of the Act, was incorrect. The show-cause notice issued to the respondents by the Deputy Collector (Refund) contained the mention of section 73; and

(ii) the learned Collector was requested to hear the arguments on the issue but no opportunity was provided.

9. Furthermore, along with the main appeal, the appellant also filed an application (placed on file), for condonation of delay in filing the instant appeal on the grounds as contained therein. Subsequently, they filed an application (placed on file) for interim relief which was received in this Tribunal on 1-12-2006, on the ground contained therein. Consequently, preliminary arguments were heard by this Tribunal on 7-12.-2006, on the points raised in the memorandum of instant appeal and it was observed that these points needed further consideration. The instant appeal was thus, admitted to regular hearing. In the meantime, operation of the impugned Order-in-Appeal No.70 of 2006, dated 25-2-2006 was suspended by this Tribunal. The case con-re up for fresh hearing on 27-1-2009, 4-2-2009 and finally oil 17-2-2009. During the course of hearing of instant appeal, the learned counsel for the respondent filed preliminary objections as well as parawise continents to the Memo. of Appeal, which arc placed on file. On the date of hearing fixed for 4-2-2009, Barrister Syed Mudassir Ameer filed his Wakalatnama on behalf of the appellant and prayed for adjournment of the hearing on the plea that he needed some time to prepare arguments in the case as he was recently engaged. His prayer was acceded to. On the last date of hearing fixed for 17-2-2009, the learned counsel appearing for the appellant huri9edly argued his case as he was to appear in another case before the Honourable Peshawar High Court, Peshawar. He almost reiterated the same arguments as raised in the Memo. of Appeal. He further explained that meanings of words "order" or "decision" or "direction" as given in the dictionary are to be taken as the same are not defined in the Customs Act or Sales Tax Act or General Clauses Act or any other Act for the time being in force and contended that the instant appeal was within time limit as the order/decision/ direction, dated 10-5-2006 is appealable before this Tribunal as they are aggrieved by the same. Thereafter, he left the bar and proceeded to put up his appearance before the Honourable Peshawar High Court, Peshawar in another case. However, Mr. Maroon Khattak, Senior Auditor continued the arguments on behalf of the appellant.

10. On the other hand, the learned counsel appearing for the respondents controverted the above contentions by the learned counsel for the appellant and the arguments advanced by the Departmental Representative. He asserted that the appellant himself has admitted in para.3 of his application for condonation of delay that his appeal against the main Order-in-Appeal is time-barred, with no plausible explanation, therefore, for lack of any cause for condonation, the instant appeal is solely liable to he dismissed being time-barred. He further contended that the instant appeal has been filed against subsequent letter, dated 10-5-2006 by the earned Collector (Appeals), refusing to entertain the review application, dated 17-4-2006 by the appellant for lack of jurisdiction, which is not sustainable in the eyes of law and the aforesaid letter by the learned Collector (Appeals), does not provide a fresh order amenable to appeal under section 46 of the Sales Tax Act, 1990, before this Tribunal. He continued his assertions and stated that the instant appeal has been filed in improper form and that, too, by incompetent authority as such the same is liable to be dismissed. Moreso, the learned appellant is estopped by his own conduct.

11. We have carefully perused the available case record and have also anxiously considered the written as well as oral submissions by the learned counsel for the rival parties and also the Departmental Representative. As clearly evident from the record the instant appeal relates only to the issue of Messrs Play Field Supplies, Sialkot and evidently, the impugned issue has been dilated and decided upon by the learned Collector (Appeals), vide para. 8 (a) of his order as reproduced in para.3 above. The contentions of the appellant thereto have also been reproduced in para.9 above. However, at this stage, we will not get into the deeper appreciation of the issues involved in the instant appeal, as we need to respond first to the preliminary objections raised by the learned counsel for the respondents, in chronological and legally convincing manner for findings thereon, as given hereinunder:

(a) First Preliminary Objection:--

Whether the learned Collector (Appeals) after having passed his Order-in-Appeal No.70 of 2006, dated 25-2-2006 under section 45-B of the Sales Tax Act, 1990 had become functus officio And, whether the learned Collector (Appeals) rightly refused to entertain the review application, dated 17-4-2006 tiled by the appellant-department for lack of jurisdiction

(i) This is the most trivial and peripheral issue involved in the instant appeal, which has direct bearing on the proceedings before us. The learned counsel for the appellant as well as the Departmental Representative have contended that the Order-in-Appeal No.70 of 2006, dated 25-2-2006 was issued by the learned Collector (Appeals) under section 45-B of the Act, wherein relating to the issue pertaining to Messrs Play Field Supplies, Sialkot, he observed that the aforesaid supplier was not a part of the show-cause notice issued to the appellants (now respondents) and that the Deputy Collector (Refund) did not mention this point in the said show-cause notice. The learned Collector (Appeals) vacated the aforesaid show-cause notice on strength of the pronouncement of the superior judiciary holding that no order could be passed and any order, if passed, the same would be illegal and without lawful authority. They have asserted that provisions of section 73 were invoked in the show-cause notice under reference covering all four issues as indicated therein. Therefore, the impugned show-cause notice contained an apparent error, which could be corrected subsequently under provisions of section 57 of the Act, read with Order XLVII of the Civil Procedure Code (Act V of 1908), further read with section 21 of the General Clauses Act, 1897. They have further contended that in the wake of such an apparent error in the impugned Order-in-Appeal, the immediate remedy available to them was to file a review application under the aforesaid provisions of law. However, the learned Collector (Appeals) returned the review application on the ground of lack of jurisdiction and directed the appellant-department, if they were still dissatisfied with the impugned Order-in-Appeal and explanation given by him in his letter, dated 10-5-2006, they may file an appeal against the same under section 46 of the Act, before this Tribunal. They have further argued that through the aforesaid letter, actually the learned Collector (Appeals) conveyed his order/decision/direction under the relevant provisions of law and the same cannot be termed as an administrative order. Thus, being aggrieved by the said order/decision/direction, they have filed the instant appeal, within the time limit, to this Tribunal;

(ii) On the other hand, the learned counsel for the respondents has controverted the above assertions by the learned counsel for the appellant and the Departmental Representative and have contended that the learned Collector (Appeals) after having passed the impugned Order-in-Appeal and become functus officio and thus, he rightly refused to entertain the review application by the learned appellant (then respondent) and then returned the same to him for the aforesaid reasons;

(iii) We have examined this preliminary objection in depth. We agree with the contention of the learned counsel for the respondents to the extent that an appeal to this Tribunal subsequent to the correspondence, dated 10-5 2006 by the learned Collector (Appeals) returning therewith the review application, dated 17-4-2006 for lack of jurisdiction does not provide a fresh order amenable to appeal under section 46 of the Act, before this Tribunal. We, thus, observe that refusal to review shall not give fresh order to file appeal against it. We also observe that the review application filed under section 57 of the Act in the present case was, undoubtedly, not maintainable as the said section relates to correction of clerical or arithmetical error in any assessment, adjudication, order or decision. A clerical error is an error in writing or typing, whereas arithmetical error is an error of calculation. However, the rectification order like the original order is appealable, if any issued. The review application, filed before the learned Collector (Appeals) under section 57 of the Act was not relating to any clerical or arithmetical error, rather it involved certain factual and legal issues relating to the present case before us. Thus, the cause and ground of review was beyond the scope of section 57 ibid as it squarely deals only with removal of clerical or arithmetical error. Similarly, review under section 21 of the General Clauses Act, 1897 relating to the issues involved was also irrelevant as the scope of the said section is restricted only to an executive order and delegated legislation, thus, the review application under section 21 ibid was also void ab initio and nullity in the eyes of law. Likewise, even if the review application before the learned Collector (Appeals) by the appellant-department was considered under Order XLVII of the Civil Procedure Code, 1908 for having been filed on 41st day i.e. on 17-4-2006, then the same was barred by 26 days without any plausible explanation given by the appellant-department in this behalf:--

(iv) We are of the considered view that only the following orders or decisions are appealable to the Appellate Tribunal:

(1) any decision or order passed by a Collector or an Additional Collector Sales Tax under section 11, 36 or 45 of the Act;

(2) any order passed by the Collector of Sales Tax (Appeals), under section 45-B of the Act; and

(3) any order passed by the Board of the Collector of Sales Tax under section 45-A of the Act.

(v) We find that in the review application filed by the appellant-department, only section 57 of the Act was invoked for review of Order-in-Appeal passed under section 45-B of the Act to the extent of the impugned issues relating to Messrs Play Field Supplies, Sialkot. Had the learned Collector (Appeals) entertained the review application, dated 17-4-2006, then it would have been an order or decision or direction passed/issued under section 57 of the Act and not under section 45-B ibid and, thus, this Tribunal is coram non judice to entertain such appeal.

(b) Second Preliminary Objection:--

Whether the instant appeal is time-barred And, whether any plausible explanation for inordinate delay has been given by the appellant

(i) The learned counsel appearing for the appellant and the Department Representative have contended that the learned Collector (Appeals) vide para. 8 of the impugned Order-in-Appeal vacated the show-cause notice to the extent of Messrs Play Field supplies, Sialkot on the ground of not mentioning the allegation of non-production of proof of payment under section 73 of the Act, whereas the same had clearly been mentioned in the show-cause notice. They have contended that the said error was pointed out to the learned Collector (Appeals) through review application, dated 17-4-2006, that he may declare para.8 (a) of the impugned Order-in-Appeal as error and mistake. It was further prayed therein that compliance of section 73 of the Act may be sought from the appellants (now respondents) and para.8 (a) may accordingly be substituted, but no heed was paid to their prayer and the review application was turned down vide his order or decision, dated 10-5-2006 on the ground of lack of jurisdiction. Being aggrieved by the said order or decision of the learned Collector (Appeals), the instant appeal has been filed, which is within limit but against the impugned Order-in-Appeal, it is time-barred by 38 days as informed by the Assistant Registrar of this Tribunal. They have stated that due to the aforesaid reasons, the delay neither wilful nor deliberate, rather it was caused due to filing of review application before the learned Collector. (Appeals) under the relevant provisions of law.

(ii) On the other hand, the learned counsel appearing for the respondents has controverted the above-stated contentions/ arguments of the learned counsel for the appellant and the Departmental Representative. He has asserted that the mala fide of the learned appellant behind the review application before the learned Collector (Appeals) was to provide legal cover to the issue of time bar and legally speaking, no appeal has been filed against the impugned Order-in-Appeal No.70 of 2006, passed under section 45-B of the Act. There are no provisions in the Act for review of Order-in-Appeal, passed under section 45-B ibid. He has argued that before deciding the case on other aspects including factual and legal issues involved, this Tribunal may graciously decide first the matter of time bar.

(iii) We notice that the limitation for preferring appeal against any order or decision of Collector (Appeals) under the Act is 60 days from the date of receipt of such order or decision. The day on which the order passed and the period upto issue and receipt of the order are to be excluded in computing the period of limitation of 60 days. It is the practice in the Collectorate of (Appeals) that copy of the decision or order is supplied by the Collectorate to the person without any application. As such, the period of limitation is to be computed from the date when the decision or order is received by the aggrieved person;

(iv) It is well-established that, although the parties themselves cannot extend the time for doing an act in any Court or Office, yet if the delay is caused not by an act of their own, but by some act of the Court or Office itself, such as the fact of the Court or office being close, they are entitled under section 10 of the General Clauses Act, 1897 to do the act on the next day afterwards on which the Court or Office is open i.e. on the first opening day.

(v) The Appellate Tribunal has been empowered to condone the delay in filing the appeal if it is satisfied that the appellant had sufficient cause for not filing the appeal within time. The expression "sufficient cause" ought to receive a liberal construction so as to advance substantial justice by disposing matters on merits. It must always be remembered as was pointed out by Lord Buck Master in Montreal Street Railway Company v. Normadin, reported as (1917) AC 170 (PC), that all rules of this type are nothing but provisions intended to secure proper administration of justice. It is, therefore, essential that they should be made to serve and be subordinate to that purpose.

Substantial justice is a material consideration when construing sufficient cause, therefore, the nature of the case and consequences of refusing to condone delay necessarily have to be taken into account. Factors such as the monetary stakes involved and the importance of the issue raised would be relevant for this purpose. Postal delay of unusual type resulting in late filing of appeal will constitute sufficient cause for condoning the delay. We notice that the word "sufficient" as used in the phrase "sufficient cause" has been defined in the Black"s Law Dictionary, to mean "adequate, enough, as much as may be necessary, equal or fit for end proposed, and that which may be necessary to accomplish an object. Of such quality, number, force, or value as to serve a need or" purpose." We place our reliance in this behalf on the case-law cited in the case of Nissen v. Miler. 44 N.M. 487, 105P. 2d 324, 326;

(vi) We find that the instant appeal as per Assistant Registrar"s Note is barred by 38 days. In fact, the impugned Order-in-Appeal was passed on 25-2-2006, dispatched to the appellant-Collectorate on 1-3-2006 and the impugned order was received in the Collectorate on 6-3-2006 and diaried at Sr. No.805. Accordingly, the appeal under section 46 was to be filed within 60 days i.e., on or before 5-5-2006 whereas the instant appeal has been filed on 7-6-2006 along with application for condonation of time bar wherein condonation was sought on the ground that the appellant-Collectorate filed an application for "Review of Order-in-Appeal No.70 of 2006 under section 57 of the Act, read with Order XLVII of the Civil Procedure Code (Act V of 1908), further read with section 21 of the General Clauses Act, 1897", which application was refused to be entertained by the learned Collector (Appeals), vide his order or decision, dated 10-5-2006. The contention of the learned counsel for the respondents seems to be convincing enough to the effect that the appellant himself admitted in para. 3 of his application for condonation of delay that their appeal against the main order is time-barred, with no plausible explanation given thereof, therefor, or lack of any cause of condonation, the instant appeal is not sustainable being barred by time.

(vii) The contention of the learned counsel for the respondents to the effect that the review application was filed by the appellant-department to give legitimacy to the issue of time bar also needs to be examined at this stage. The Honourable Supreme Court of Pakistan, faced with identical situation, in the case of Ghulam Hussain v. Kanwar Ashiq Ali Khan, reported as 1980 PLD SC 198, has held as under:--

"While seeking leave to appeal against order refusing to review the main previous order, in fact the object of the petitioner is to seek vacation of the said order which by efflux of time has become final. The fact that in review, the Court further affirmed the aforesaid order is immaterial inasmuch as a refusal to review the same will not give afresh period of limitation to challenge it. In this peculiar situation therefore, when the previous Order has become binding on the petitioners, they cannot be allowed to bypass it by simply pleading that the present petition is against order refusing to review the same because while stating so, their intention is to point out errors and mistakes in the basic order which were sought to be removed through a review application but which failed."

(viii) Similarly, in another case reported as 1998 SCMR 307, the Honourable Apex Court has held as under:--

"Clearly, the object of Civil Petition No.303 of 1996 seeking leave to appeal against order, dated .10-3-1996 refusing to review the order, dated 29-10-1995 in writ petition is to seek withdrawal/recalling of the previous order which has become final on the ground of limitation, therefore, refusal to review the - same will not give fresh period of limitation to challenge it."

(ix) It is by now settled law that delay of each day is to be explained for condonation. Reliance in this regard is placed on:--

(1) Federation of Pakistan v. Jamaluddin, reported as 1996 SCMR 727;

(2) Income Tax Officer v. Sheikh Miraan Bakhsh and 25 others, reported as 1986 SCMR 1255; and

(3) MEO and another v. Syed Qamoos Shah and 20 others, reported as PLD 2004 Peshawar 40.

(x) However, by also placing our reliance on the case-law cited in the judgment given by Abdul Majeed Tiwana, Chairman, in Customs Appeal No.532/LB of 1999, 2002 Law Notes 207, wherein it has been held that delay in filing the appeal would stand condoned, where application for condonation filed, but not adverted to by the Tribunal. The provisions of subsection (5) of section 194-A of the Customs Act, provide, that the Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in subsection (3) or subsection (4) of section 194-A ibid, if it is satisfied that there was sufficient cause for the presenting it within that period. Where the appeal is time-barred and the appellants had made an application for its condonation, but it was not adverted to by the learned Bench of the Tribunal and the appeal was admitted to regular hearing, the delay stood automatically condoned.

(xi) Likewise, the provisions of subsection (2) of section 46 of the Sales Tax Act provides that the Appellate Tribunal may admit an appeal preferred after the period of limitation specified in subsection (1), if it is satisfied that there was sufficient cause for not presenting it within the specified period. We notice that the precedent of one Bench is binding on the other Bench of the Tribunal unless it is set at naught by decision of the full Bench of the Tribunal. We place our reliance in this behalf on the case-law cited in the case reported as 2005 PTD 501. Since the above judgment is by the Chairman of the Tribunal, therefore, we are also in respectful agreement with the principle laid down therein. We find that the instant appeal was filed along with application for condonation of delay. The appeal was admitted by this Tribunal to regular hearing and even operation of the impugned Order-in-Appeal was suspended, but the application for condonation was not adverted to by this Tribunal and thus, the delay in filing the instant appeal stood automatically condoned.

(c) Third Preliminary Objection:

Whether the instant appeal has been filed in improper form and that too, by incompetent authority

(i) The learned counsel for the appellant as well as the Departmental Representative are of the opinion that the order" or decision" or direction" passed/issued under section 45-B is not required to be passed in any specific form or format. All that is required is that the order or decision or direction should be adverse to the appellant whereby, he becomes an aggrieved person within the meaning of section 45-B ibid. They have also asserted that any person including the Sales Tax Department, aggrieved by any order passed by the Collector of Sales Tax (Appeals), under section 45-B ibid may, within sixty days of receipt of such order or decision or direction, prefer an appeal to the Appellate Tribunal under section 46 ibid. On the other hand, the learned counsel for the respondent has contended that an appeal is to be filed in proper form or format. According to him, the instant appeal has not been filed in proper format and moreso, it has been filed by the Assistant "Collector of Legal Division of the Collectorate, who is not competent to do so under the law;

(ii) We are of the firm view that the contention of the learned counsel for the appellant carries substantial weight and is based on departmental practice as well as on the case laws in different cases, properly reported. In this context, we gain support from the judgment of the Superior Court cited in the case, reported as 2006 SCMR 1670 = 2006 PTD 2277, wherein it has been held that order or decision is circumscribed by no specific form or format. All that requires is that it should be adverse to the person concerned to the extent that he should feel "aggrieved" of it and he has a right of appeal. We are, thus, of the considered view that where an order or decision is circumscribed by no specific form or format, an appeal against such order or decision cannot be circumscribed by any specific form or format. We find that under the Act and the Rules framed thereunder, no specific form or format of appeal is prescribed, however, perusal of S.R.O. 897(I)/2006, dated 1st September, 2006 (printed in Gazette of Pakistan (Extra-Ordinary Part-II) duly reported as PTCL 2007 St 125, relating to Customs, Federal Excise and Sales Tax Appellate Tribunal (Procedure) Rules, 2006, reveals that under Rule 8 thereof, procedure for filing of appeals has been given and in Sub-rule (1) of Rule 8 thereto, it is mentioned that the memorandum of appeal to the Tribunal shall be in the prescribed form, but no form has been prescribed thereunder and on appeal pro forma including, therewith the memorandum of appeal and other documents has been prescribed as Annexure-1, however, in Rule 11 of the said S.R.O., it is given thereunder that every memorandum of appeal shall set forth concisely and under distinct heads, the specific grounds of appeal without any argument or narrative and such grounds shall be numbered consecutively. Likewise, under Rule 12 thereto, it is given that every memorandum of appeal shall be clear and legible and shall accompany all the documents required under Clause (iii) of sub-rule (3) of Rule 5.

(iii) We agree with the learned counsel for the appellant that the instant appeal was filed by the competent person i.e. Assistant Collector of Legal Division of the Collectorate. We find that at the time of filing the instant appeal i.e., on 7-6-2006, the words "an officer of Sales Tax and below the rank of an Additional Collector" were substituted for the words "the Sales Tax Department" by the Finance Act, 2006 (III of 2006), assented on 30th June, 2006; reported as PTCL 2006 BS 105. Thus, the then Assistant Collector of Legal Division was competent to file an appeal on behalf of the Sales Tax Department on the date of filing the instant appeal i.e. 7th June, 2006.

(d) Fourth Preliminary Objection:

Whether the appellant is estopped by this own conduct

(i) The learned counsel appearing for the appellant as well as the Departmental Representative have categorically denied that the Principle of Estoppel is applicable to the instant appeal. Whereas the learned counsel for the respondents has asserted that the Principle of Estoppel is clearly implied in the present case and the appellant is estopped by his own conduct of not filing an appeal against the impugned Order-in-Appeal passed under section 45-B of the Act to the Appellate Tribunal under section 46 ibid and instead he filed a review application to the learned Collector (Appeals) on flimsy grounds with the mala fide intention to provide a legal cover to the issue of time barred.

(ii) We have dilated upon the issue of filing of review petition/ application by the appellant-department before the learned Collector (Appeals), in the preceding paras. It will be inappropriate to reiterate the same .deliberations here again. We have already determined that the appellant-department has erred by filing a review application before the learned Collector (Appeals), who rightly returned the said review application to the appellant-department for lack of jurisdiction. We have already observed that refusal to review shall not give fresh order to file an appeal against it as the same review application was not sustainable in the eyes of law, besides being already time-barred by 26 days, without any plausible explanation. In these circumstances, we may agree with the learned counsel for the respondents that the learned appellant is estopped by his own conduct by filing a review petition/application before the learned Collector (Appeals), who lacks jurisdiction to entertain review application involving factual and legal issues, under section 57 ibid. It is our considered opinion that an order or decision under section 45-B after it has been announced, cannot be otherwise modified or altered, amended excepted for clerical or arithmetical error under section 57 ibid or under section 46 ibid after filing an appeal against an order" or decision" passed under section 45-B. 12. After parting with the above stated preliminary objections, we will now attempt to go into the deeper appreciation of other factual and legal issues involved in the instant case before us in the manner as given below:--

(a) We notice that the learned Collector (Appeals), vide his Order-in-Appeal No.70 of 2006, passed under section 45-B of the Act, retained the Order-in-Original to the extent of rejection of refund claims of Rs.2,310,150 relating to Messrs Tariq Muneer Traders, Hafizabad and of Rs.65,255 relating to Messrs Azhar Corporation, Faisalabad and of Rs.1,670,886 relating to Messrs Hi Beam International, Sialkot. The learned Collector (Appeals), vide his aforesaid Order-in-Appeal, however, accepted the refund claims of Rs.3,383,340 relating to Messrs Play Field Supplies, Sialkot and of Rs.1,746,079 relating to Messrs Xcellentrade International, Peshawar besides waving of penalty imposed under sections 33(4)(2), 33(4)(f) and 36 of the Sales Tax Act, 1990.

(b) Being aggrieved by the impugned Order-in-Appeal relating to the acceptance of refund claim of Messrs Play Field Supplies, Sialkot on the grounds given therein, the appellant-department filed a review application, dated 17-4-2006, before the learned Collector (Appeals), on the grounds given therein, instead of filing an appeal against the said Order-in-Appeal to this Tribunal under section 46 of the Act. The said review petition/application was not entertained by the learned Collector (Appeals) due to lack of jurisdiction, besides being time barred by 26 days. Being further aggrieved by the aforesaid impugned order/decision/ direction, the learned appellant filed an appeal to this Tribunal under section 46 ibid, which is time-barred by 38 days, though the learned appellant has filed an application for condonation of delay in filing the instant appeal on the grounds given therein. We have. already dilated upon the issue of delay in filing the instant appeal under para.11 above and it will be considered inappropriate to reiterate the same arguments here again.

(c) On the other hand, being further aggrieved by the impugned Order-in-Appeal, the learned respondents (then appellants) filed an appeal to this Tribunal to the extent of rejection of refund claims relating to Messrs Tariq Muneer Traders, Hafizabad and Messrs Hi Beam International, Sialkot. Consequently, the appeal of the then appellants (now respondents in this case) was disposed of by this Tribunal vide judgment in Appeal No.S.T.93/PB/2006, announced on 29-8-2007, by setting aside the impugned Order-in-Original and impugned Order-in-Appeal and remanding the case to the Deputy Collector of Sales Tax (Refund), Peshawar, with the direction to re-examine the then appellants" claim, inter alia, in the light of parameters discussed in paras. 5 and 6 therein and then pass a speaking order on merit, by affording opportunities to the parties of being heard.

(d) Being further aggrieved by the above judgment of this Tribunal, the learned respondents in this case (appellant in that case) have admittedly filed Tax Reference No.109/2007, which is pending before the Honourable Peshawar High Court, Peshawar for disposal. However, as admitted by the learned counsel for the respondents, no stay against the operation of the aforesaid judgment by this Tribunal has been obtained/provided from/by the Superior Court; hence, the said judgment is still in the field as the case stands remanded to the original adjudicating authority for de novo consideration.

(e) Now, before going into the deeper appreciation of other factual and legal issues involved in this case, a question arises as to what is the legal status of the instant appeal before us, which has been filed against the impugned Order-in-Appeal that has already been set aside by the Tribunal vide its aforesaid judgment, dated 29-8-2007 The simple answer is that the instant appeal has become infructuous for the aforesaid reasons and is not sustainable in the eyes of law. 13. In view of the above stated reasons, we find that" the instant appeal has become infructuous and as such, it stands .disposed of accordingly. 14. Announced on 25-3-2009. 15. Concerned parties be informed within ten (10) days of passing of this judgment. C.M.A./66/Tax (Trib.) Order accordingl

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