2002 PTD 2751 CUSTOM,EXCISE-AND-SALES-TAX-APPELLATE-TRIBUNAL

2002  PTD  2751     CUSTOM,EXCISE-AND-SALES-TAX-APPELLATE-TRIBUNAL

Appeal Case No.7(44)ST/IB/2000(PB), decided on 15th June, 2002.

 Sales Tax Act 1990 —-Ss. 3, 2 (33)(a), 2(46), 45A, 33 & 34—S. R. O. 178(I), dated 29-3-2002—Scope of tax—Supply—Value of supply—Powers of the Board and Collector to call for records—Consumption of bagas se in fuel—Non-payment of sales tax—Show-cause notice—Determination of price/value—Admitted price of bagas se to be ranging between Rs.85 per tonne to Rs.300 per tonne (averaging 177.75 per tonne)—Central Board of Revenue fixed value of Rs.200 per tonne for in house consumption of bagas se during 1996-97 vide Notification No.S.R.O. 178(1)/2002, dated 29-3-2002 in terms of first proviso to S.2(46) of the Sales Tax Act. 1990—Applicability of—Appellant also challenged the legality of levy of sales tax on bagas se under S.3 of the Sales Tax Act, 1990, on the ground that burning the bagas se in their own boilers did not constitute “supply” within the meaning of S.2(33)(a) of the Sales Tax Act, 1990—Validity–Appellant had not pressed the reasonings and arguments advanced in its written appeal which were otherwise rejected in view of the findings of Supreme Court of Pakistan—In para. 2 of the Notification No. S.R.O. 178(1)/2002, dated 29-3-2002 it is unambiguously stated that “This notification shall apply to cases disposed of by the said Appellate Tribunal in terms of the aforesaid judgment—Appellant’s case having not been decided by the Appellate Tribunal’s said judgment, dated 3-12-2001 was not covered by the said notification—Moreover, appellant’s case was distinct from the cases involved in the said judgment, dated 3-12-2001 in the sense that those appellants did not have any agreed assessable price determined by a Committee constituted by the respective Collector under cl. (e) of S.2(46) of the Sales Tax Act, 1990, while the appellant had such a value (of Rs.310 per kg.) determined by such a Committee constituted by the Collector of Sales Tax—Price fixed by the Central Board of Revenue under the first proviso to S.2(46) of the Sales Tax Act, 1990 was not the final price and rather, in terms of the second proviso to the said S.2(46) of the Sales Tax Act, 1990, was deemed to be the minimum assessable price (unless otherwise directed by the Central Board of Revenue) and there was no Central Board of Revenue’s direction to the contrary even in respect of S.R.O. 178(1)/2002, dated 29-3-2002—Appeal was dismissed and the impugned order was confirmed by the Tribunal —However, this would not debar appellant from seeking, refund from the Collector in terms of S.66 of the Sales Tax Act, 1990, if they have any claim on merit and admissible under S.66 of the Sales Tax Act, 1990.