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S.T.A. No.617/LB of 2000, decided on 10th December, 2007.

----Ss.33, 34, 36, 2(9), 3, 6 & 26----S.R.O. 463(I)/2007, dated 9-6-2007 as amended vide S.R.O.999(I)/2007, dated 20-9-2007---S.R.O.520(I)/99, dated 30-4-1999---Offences and penalties---Amnesty---Levy of additional tax due to late payment and penalty on account of violations of Ss.2(9), 3, 6, 26 read with Ss.33, 34 & 36 of the Sales Tax Act, 1990---Validity---Department confirmed that principal amount was deposited by the appellant and contended that it was not a case of tax fraud, therefore, additional tax and penalty as provided in S.R.O. 463(I)/2007, dated 9-6-2007 as amended vide S.R.O. 999(I)/2007, dated 20-9-2007 may be waived---Case of the appellant was covered under the said S.R.Os. as the principal amount was not outstanding as confirmed by the department---Appeal to the extent of remission of additional tax which was still being demanded and penalty imposed was accepted by the Appellate Tribunal--Amount of additional tax already deposited by availing some earlier amnesty or even otherwise was not refundable being a closed transaction---Order-in-original was modified accordingly.Khalid Ishaq for Appellant.

Akhlaq Ahmad for Respondent. Date of hearing: 6th December, 2007.

Impugned in this appeal is the Order-in-Original No.236 ol2000, dated 14-2-2000 (despatched on 9-8-2000), passed by the Additional Collector (Sales Tax), Multan ordering the recovery of evaded sales tax Rs.2240625 against short payment of April and May, 1999 and balance amount of additional tax Rs.75,91,281, besides a penalty of Rs.20,000 was also ordered to be recovered. 2. Briefly stated, the relevant facts of the case are that the appellant deposited sales tax for the months of 4 of 1998 to 6 of 1998 and 11 of 1998 to 4 of 1999 after due date which attracted levy of additional tax. Further, the registered person did not deposit sales tax amounting to Rs.13,78,873 and Rs.8,61,752 relating to months of April and May, 1999 respectively. Moreover, the registered person (the appellant) also failed to file monthly sales tax returns for the period from 7 of 1998 to 10 of 1998. 3. Accordingly, based on the reported facts of the case, a show-cause notice, dated 5-11-1999 was issued for recovery of the sales tax Rs.22,40,625 along with additional tax amounting to Rs.78,97,599 due to late payment and penalty on account of violations of sections 2(9), 3, 6, 26 read with sections 33, 34, 36 of the Sales Tax Act, 1990. The matter was contested-by the appellant (the then respondent) mainly on the grounds that liability was paid off despite financial crisis; the dues were deposited within time as provided in S.R.O. 520(I)/99, dated 30-4-1999 for the clearance during the months of June and July, 1999, the liability was got adjusted against duty draw back claims. 4. On the other hand, the Departmental representative rebutted the contentions. The Additional Collector (Adjudication) vide his Order-in-Original 14-2-2000 (despatched on 9-8-2000) adjudged the amount as under:- -

"I have gone through the case record of Messrs Indus Sugar Mills Limited, Rajan Pur, and concluded that an amount of Rs.410,237 (25% of additional tax Rs.16,40,948) against late payments upto June, 98 has been paid against show-cause notice No.83/99/Adj/ST/21950, dated 23-12-1999 and amount of sales tax Rs.22,40,625 against short payment of April and May, 99 and balance amount of Rs.759,128 additional tax is ordered to be recovered. Assistant Collector is advised to calculate the exact amount of additional tax up to date. I also order the recovery of penalty against non-filing of monthly return from July, 98 Rs.5000 per month total Rs.20,000." 5. Being aggrieved, the appellant filed an appeal before the Tribunal mainly on the ground that payment of additional tax is not warranted; the sales tax due was deposited in time by availing the facility in terms of S.R.O. 520(I)/99, dated 30-4-1999; the penalty imposed runs counter to the provisions of the Act. Finally at the time of hearing it was again contended that the principal amount of sales tax has already been deposited which was also confirmed by the departmental representative. 6. We have examined the case record. Also heard the arguments of both the sides. Anxious consideration has been given to the contentions raised in the memo. of appeal as well as the points additionally agitated at the time of hearing. The departmental representative has confirmed that an amount of Rs. 13,59,926 was deposited by the appellant on 12-7-1999 (This may be re-confirmed if the department so desires). So far as the additional tax is concerned the appellant has contended that it is not a case of tax fraud, therefore, additional tax and penalty as B provided in S.R.O. 463(I)/2007 as amended vide S.T.O. 999(I)/2007, dated 20-9-2007, may kindly be waived. Having perusal of said S.R.Os. we find that the case of the appellant is covered under the above S. R.Os. as the principal amount is not outstanding as also confirmed by the department. Therefore, the appeal to the extent of remission of additional tax which is still being demanded and penalty imposed is accepted. The amount of additional tax already deposited by availing some earlier amnesty or even otherwise is not refundable being a closed transaction. The Order-in-Original is modified to the above extent. 7. Announced. 8. Inform all concerned through registered post. C.M.A./63/Tax (Trib.) Order accordingly.

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