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Petitioner: ARMY WELFARE TRUST - NIZAMPUR CEMENT PLANT, RAWALPINDI VS Respondent: COMMISSIONER INLAND REVENUE , LTU, ISLAMABAD
Court Name: Appellate Tribunal Inland Revenue Judge(s): Jawaid Masood Tahir Bhatti, Faheem-ul-Haq Khan Title:ARMY WELFARE TRUST - NIZAMPUR CEMENT PLANT, RAWALPINDI vs
COMMISSIONER INLAND REVENUE , LTU, ISLAMABAD Case No.: S.T.A. No,71/IB and M.A. (R) S.T.A. No,18/IB of 2013 Date of Judgment:2013-07-03 Reported As: 2013 PTD (Trib.) 2268 Result: Appeal accepted Judgment ORDER ' Instant appeal arises out of the order of Commissioner Inland Revenue (Appeals-I), Islamabad bearing No, 152 of 2011 dated 3-6-2011 whereby the learned first appellate authority upheld the Order-in- Original No, 16 of 2010 dated 1-12-2010 passed by the Additional Commissioner Inland Revenue (ACIR), LTU, Islamabad. Besides, a Miscellaneous Application has also been filed by the appellant for giving effect to the Order of the CESTAT's Order (Customs, Excise and Sales Tax Appellate Tribunal) dated 3-7-2008 passed in Appeal No, CE/252/PB/2004. 2. Facts leading to the appeal, succinctly stated, are that the Hon'ble Supreme Court of Pakistan through its judgment reported as 2007 PTD 1656 = 2007 SCM R 1367 dated 14-4-2007 upheld the judgment of the Hon'ble Peshawar High Court reported as 2003 PTD 1002 wherein the Hon'ble High Court had defined the parameters of retail price for the purpose of charging Central Excise Duty (CED) and categorically ruled that the "retail price", for the purpose of charging CED would not include the component of CED. In arriving at the above conclusion the Hon'ble High Court discarded the method of determination of CED contained in Central Excise General Order No, 14 of 1969 wherein the CED was directed to be treated as part of the retail price. The Court further held that the methodology laid down in CEGO 14 of 1969 was not rational as it resulted in double taxation apart from being unlawful for the reason that the ingredients of retail price as listed in section 4(2) of the Central Excises Act, 1944 included only "tax" and "charges" and not the "duty". The Revenue assailed the judgment of the High Court in further appeal before the Supreme Court but did not succeed.
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' On the basis of judgments of the High Court and the Supreme Court of Pakistan, the appellant submitted refund application to the concerned Additional Collector (Refund) stating that it had overpaid CED by an amount of Rs,335.915 (M) for the period 11/1996 to 4/1999 by including the CED in the "retail price". The said application was, however, turned down by the ACIR on the following grounds:-- (a) The judgments of the Supreme Court of Pakistan and High Court Peshawar relied upon by the appellant were not applicable to the appellant as it was not a party to the litigation and the judgment does not have retrospective effect; (b) The claim was hit by limitation as it had been lodged much after the lapse of statutory period of one year prescribed by the law; and (c) There was probability of 'passing on' of the CED to the consumers and for this reason the claim was not admissible in view of section 3-D of the Central Excises Act, 1944 read with section 11 of the Federal Excise Act, 2005. ' Feeling aggrieved, the appellant filed appeal before the learned CIR(A) who vide his impugned order upheld the Order-in-Original passed by ACIR. Hence, the instant appeal. 3. Dilating upon the grounds of appeal, Mr. Tahir Razzaque Khan learned representative of the appellant took strong exception to the orders passed by the authorities below and contended that both the authorities had fallen in serious error by rejecting the refund application in the face of binding judgments of the Hon'ble Peshawar High Court and the Hon'ble Supreme Court of Pakistan. Referring to different case-laws on the subject, the learned AR contended that a judgment of the superior Court interpreting a provision of law dealing with a principle of law is always a judgment in rem and not judgment in personam. In this context, he quoted the judgment of Tribunal reported as 1998 PTD (Trib.) 3866 wherein Mr. Mujibullah Siddiqui, the then Chairman of ITAT, speaking for the Bench observed as under:-- "The Law and Justice Division, Central Board of Revenue and Commissioner of Income-tax (Appeals) have fell in error in holding that the judgment of Hon'ble Supreme Court of Pakistan is not retrospective in nature. Any judgment pronounced by a competent judicial Authority and particularly the Honourable Superior Courts containing interpretation of an existing law does not amount to making of law from the date of the pronouncement of the order but it amounts to declare as to what the law in fact is and has always been and should he treated to be from the very inception. Thus, the law as declared by the competent judicial forum and particularly the superior Courts whose judgments have the force of precedent, have the retrospective effect. However, the retrospectivity of a statute law differs from the retrospective effect of a superior Court judgment containing interpretation of law. The retrospective effect of a statutory legislation is that it takes effect and becomes operative even before the date of its promulgation and is applied to all the pending cases and such matters, which have not attained finality. On the other hand, the retrospective effect of a judicial pronouncement in pursuance of the interpretation of law shall be from the inception of the law and not prior to that and shall be followed by all the judicial and quasi-judicial forums subordinate to the Court pronouncing judgment and shall be applicable to all the pending cases as well as to the matters which have not attained finality and have not become past and closed matters." ' He has also referred to the case of Maqbool Textile Mills Limited v. Federation of Pakistan reported as 2001 PTD 1 wherein the Hon able Lahore High Court, Lahore held as under:- "11. All pronouncements by superior Courts, interpreting specific provisions of law have retrospective effect. The judgment of the Hon'ble Supreme Court declaring certain provisions of law to be inapplicable to a class of assessee is a judgment in rem. It means even if the petitioners had not filed the said Constitutional petitions, they were entitled to the refund of turn over tax either voluntarily paid or coerced by the department. In such situation any payment made by the
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assessee or received by the department could not be termed as a passed and closed transaction. The retention of all such sums would be unjustified in view of the law laid down by Hon'ble Supreme Court in re: Pfizer Lab. Ltd. v. Federation of Pakistan (PLD 1998 SC 64). Speaking for the Court, Ajmal Mian, J. Examined laws of various foreign jurisdictions to conclude: (i) That if one party under a mistake, whether of fact or law, pays some money to another party (which includes a Government department), which is not due by law or contract or otherwise, that must be repaid in view of section 72 of the Contract Act, 1872. (ii) That the customs duties and charges referred to in section 33 of the Act should be chargeable and payable by an importer or exporter and that due to inadvertence, error or misconstruction, more amount was paid or recovered than what was due and payable, the claim for the refund of such an excess amount should be made within six months as envisaged in, above section 33, but where the duty of tax charged arid recovered was not payable at all, above section 33 has no application. (iii) That if the customs duty or any other levy was realized and its realization was outside the statutory authority, the provisions of section 27(1) of the Indian Customs Act, 1982, providing limitation of six months was not attracted. (iv) That when any excise duty is recovered which was not leviable, limitation of one year provided in Rule 11 of the Central Excise and Salt Rules, 1944 is not applicable nor an alternate remedy by way of a suit will be a bar to a Cohstitutional petition. (v) That payment of excise duty or any other tax without knowledge that the same is exempted under a notification is refundable on the same footing as if there was no lawful imposition. (vi) To return what has been taken wrongly is as much a duty and grace of Government to levy relentlessly and fully what is due as remarked by V.R. Krishna Iyer, J. (vii) That where some money is received by the Government not lawfully due, the plea of limitation by its departments is one which the Court always looks upon with dis-favour as it is violative of the principles of morality and justice. (viii) That when moneys are paid to the State which the State has no legal right to receive, it is ordinarily the duty of the State, subject to special provisions of any particular statute or special facts and circumstances of the case, to refund the amount so received and in case of failure, a superior Court in exercise of its Constitutional jurisdiction can direct the refund of the same if no disputed questions of facts are involved. (ix) That there may not be legal liability on the part of a Government functionary to refund any amount received by it as a tax or other levy by virtue of certain special provisions under the special law but keeping in view that we are living in a democratic society governed by the rule of law and every Government, which claims to have ethical and moral values, must do what is fair and just to the citizens regardless of legal technicalities. (x) That as per Indo-Pak laws the fact that the amount of tax of which refund is claimed was voluntarily paid, does not preclude the right to claim refund, if it was not lawfully payable. (xi) That the money paid by a citizen to a public authority in the form of taxes or other levies paid pursuant to an ultra, vires demand by the authority is prima facie recoverable by a citizen as of right. Lord Bridge of Harwish of the House of Lords in the case of Tower Hamlets Borough Council (supra) remarked 'that the retention of moneys known to have been paid under a mistake at law, although it is a course permitted 2o an ordinary litigant is not regarded by the Courts as ,a high- minded thing' to do but rather as a 'shabby thing' or a 'dirty trick' ." ' The learned AR also referred to the judgment of the Hon'ble Supreme Court of Pakistan reported as PLD 1998 SC 64 wherein the apex court laid down the following principles with regard to refund due to a citizen:--
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"(i) When moneys are paid to the State which the State had no legal right to receive, it was ordinarily the duty of the State, subject to special provisions of any particular statute or special facts and circumstances of the case, to refund the amount so received and in case of failure, a superior Court in exercise of its Constitutional jurisdiction could direct the refund of the same if no disputed questions of facts were involved. (ii) There may not be legal liability on the part of a Government functionary to refund any amount received by it, as a tax or other levy by virtue of certain special provisions under the special law but keeping in view democratic society governed by the rule of law and every Government, which claims to have ethical and moral values, must do what is fair and just to the citizens regardless of legal technicalities. (iii) The fact that the amount of tax of which refund was claimed was voluntarily paid, did not preclude the right to claim refund, if it was not lawfully payable." ' Elaborating his arguments further, the learned AR contended that the question of appellant's being or not being a party to the litigation involving determination of CED was irrelevant because interpretation of a fiscal statute by the superior judiciary is binding upon all the taxpayers as well as administrative and judicial fora. Any deviation from the pronouncement of a superior court particularly the Hon'ble Supreme Court regarding exposition of law amounts to miscarriage of justice and needs to be brought in conformity with the ruling of the Court. He vehemently argued that denial of benefit of the judgments of the Hon'ble Peshawar High Court and the Hon'ble Supreme Court of Pakistan to the appellant by the forums below amounted to serious violation of judicial discipline and propriety, which militated against the principles laid down by the Hon'ble Supreme Court in PLD 1998 SC 64. According to him both the authorities below committed serious violation of law by not following the ratio of judgments quoted supra. He prayed that the Revenue be directed to follow these judgments in letter and spirit rather sacrificing justice at the altar of far- fetched legal subtleties. ' He has drew the attention of the Bench to the fact that in pursuance of a show cause notice, the Collector of Customs, Excise and Sales Tax (Adjudication), Rawalpindi had passed Order-in- Original dated 29-5-2004 whereby he levied CED on the petitioner by including the CED in the retail price. The said order pertained to the period 11/1996 to 6/1997. Against this order the appellant filed appeal before the CESTAT, which, following the judgments of Peshawar High Court and Supreme Court of Pakistan, quoted supra, accepted the appeal and directed the Revenue to recalculate the CED in accordance with the above referred judgments. He has contended that in spite of repeated requests and reminders the department has not given effect to the Order of the Tribunal, which is another serious violation of judicial discipline on the part of Revenue Officials. The learned AR has prayed for adequate relief on this score as well. ' Regarding the observation of the forums below that the refund is not admissible because of not having been claimed within one year of its accrual, the learned AR submitted that both the authorities below had not gone through the provision of section 44 of the Federal Excise Act, 2005, which for the sake of reference is reproduced hereunder:-- "44. Refund of Duty.---(1) No refund of any amount of duty accrued for any reason under this Act or rules made thereunder shall be allowed unless claimed within one year of its accrual. (2) In a case where a registered person did not avail adjustment of duty admissible at the relevant time, the Commissioner may allow such person to avail the adjustment at any subsequent time provided that claim for such adjustment is made within a period of one year from the date in which it was admissible. (3) In a case where claim for refund or adjustment has accrued in consequence of any decision or judgment of any Federal Excise Officer, the Tribunal or Court, the period of one year, for the purpose of this section, shall be computed from the date of such decision or judgment."
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' He has explained that payment of excess CED through mistake came to the notice of the appellant when the judgment of the Hon'ble Supreme Court (dated 14-4-2007) in the case of Lucky Cement was reported in the leading law journals of the country. It was through this judgment that the concept of retail price for the purpose of charging CED was thrashed out to the hilt enabling the taxpayers to determine their liability in the light of the said judgment of the apex court. The claim of refund was, accordingly, lodged on 12-11-2007 which was well within time as prescribed in subsection (3) of section 44 quoted supra. He as further explained that subsection (3) does not specify that only a litigant party could avail the benefit of the judgment, whereas other cases involving similar facts and issues were not entitled to the benefit of the judgment. He has contended that if such a narrow interpretation as He has referred to another dimension in the context of limitation by referring to two other judgments of the Hon' able Supreme Court adopted by the forums below was put on the judgments of the High Courts and Supreme Courts, the concept of judgment in rem would vanish in the air. Besides, such an interpretation was also discordanted with the ratio of the deceives reported as 2001 PTD 1 Lahore High Court, Lahore and 1998 PTD (Trib.) 3866 and would result in discriminatory treatment to a large number of taxpayers, which would be violative of Article 25 of the Constitution of Pakistan reported as 2000 SCM R 1305 and PLD 2006 SC 697 wherein the honourable. Court had held that an acid test recognized all over the world regarding the mandatory or directory nature of a provision of law was prescription of an adverse consequence in case of failure to comply with a provision of law. If such a consequence is provided, the provision would be mandatory and vice versa. In the instant case, the learned AR argued that no adverse consequence had been prescribed for failure to apply for refund within one year in the statute book. He referred to an English judgment Deutsche Morgan Grenfell Group Plc v. Commissioner IR reported as 78 TC 120; [2003] STC 1017 (Ch.) and [2007] STC 1 (HL), wherein the House of Lords authoritatively ruled that the period of limitation would be reckoned from date of the judgment of the court rather than the date on which the proceedings are closed because it is not obligatory on the Court to accept the arguments advanced on behalf of a party, however, forceful they may be. The Court laid down the following principles to dispose of claims regarding payment of tax because of a mistake:- "(a) a claim of restitution of a payment made under a mistake of law can apply in the case of a payment of tax to a revenue authority; (b) DGM did paid tax under mistake of law; if the true state of law had been known at the tune of payment, in consequence, would not have paid the tax; ' The mistake was discovered and the limitation period began when the European Court Judgment was given in March 2001 (in Metallgesellschaft/Hoechst case), it did not began in September 2000, when the Advocate General delivered his opinion, because it was not in evitable that the court would take the same view as Advocate General; (limitation) did not began in 1995, because all that DMG discovered then there was a possibly an adverse argument (that group income election could be made with parent companies in EU member states other than UK. ' The learned AR further contended that there was no rebuttal to the fact that the excess amount of duty had been paid by the appellant under a mistake of law. If the correct exposition of law had been brought or otherwise come to the notice of the appellant, it would not have paid the excess amount of duty. In this context the learned AR referred to the case of Kohinoor Industries Limited v. Federation of Pakistan reported as 1994 CLC 994 wherein the Hon' able High Court had held that Rule 11 (limitation of one year for claiming refund under Central Excise Rules, 1944) would not apply where the tax had been paid under a mistake of law or fact or compulsion. ' The learned AR of the appellant, took strong exception to the observation recorded by the authorities below to the effect that the claim of refund was not admissible as the incidence of tax had been 'passed on' to the consumers. He submitted that the observation was based on
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conjectures and surmises and had nothing to do with reality. He also submitted a copy of a certificate issued by a reputed firm of the chartered accountants, confirming the factual position as under : "We are pleased to submit this certificate on the points communicated to us vide letter dated 12-3- 2013. We are pleased to submit our findings as under:-- (i) The AWT-NCP has paid an amount of Rs,1,164,660,962 to the national exchequer on account of central excise duty during the period from 24-11-1996 to 20-4-1999 as per record produced to us. (ii) According to the judgment of Peshawar High Court which was upheld by the Supreme Court of Pakistan (reported as 2003 PTD 1002 and 2007 PTD 1656 respectively), the amount payable is worked out at Rs,808,664,037. In working out this amount, sales tax amount of Rs,72,154,242 has been taken into consideration at the time of calculation in terms of section 4(2) of the Central Excises Act, 1944. Therefore, an amount of Rs,283,842,683 becomes receivable/refundable from the department after adjustment of above amount of sales tax. (iii) The record (including financial statements) reveals that AWTNCP cost of production is more than the amount recovered from the customers. AWT-NCP has paid CED in advance and from its own sources and borne the duties. (iv) After the perusal of record (both tax record and accounting record), we are of the considered opinion that the amount of CED is refundable to the tune of Rs,283,842,683 after adjustment of sales tax liable to be paid after adjustment of Rs,72,154,242. We further certify that incidence of CED has not been passed on to the consumer/customers. (v) We also certify that we have not be able to trace any figure/ amount which was recovered by AWT-NCP as sales tax from the record (which include invoices, excise record, ledger accounts and audited accounts) of the project. The amount of Rs,72,154,242 is taken into calculation as the order of Peshawar High Court in SAO No, 2/2000 dated 24-4-2012 is in field and appeal is pending before the Supreme Court of Pakistan. (vi) To sum up of the above, we certify the amount of refund of Rs,283,842,683 as under: Total amount of CED paid during November 1996 to April 1999 Rs,1,164,660,962 Less: (a) Amount of CED payable under Rs,808,664,037 Peshawar High Court and Supreme Court Order in Lucky Cement case. (b) Amount payable under S.A.O. No, 2 of Rs,72,154,242 2000 Rs,888.818,279 ' Net Amount CED refundable from tax Rs,283 842683" department ' The learned AR, explained that the authorities below also failed to comprehend the distinction between the nature of levy of 'excise duty' and 'sales tax'. If they had applied mind to the methodology of both the levies, they would not have come to the conclusion recorded in their respective orders. He stated that CED was chargeable on a product as soon as it was manufactured or imported irrespective of its further use in terms of sale or self-consumption whereas sales tax was charged when taxable goods were sold/supplied to the customers. In other words, CED was charged irrespective of the sale of a product whereas sales tax was levied when taxable goods passed on to a customer by way of sale. How could a levy which has no nexus with sales could be treated as having been passed on to the prospective buyer? The learned AR asked. ' To further reinforce his argument the learned AR drew the attention of the Bench to the huge accumulated loss of Rs,1,513.819 million disclosed in the Audited statement of accounts for the year ended on 30-9-1997 to 30-9-1999. He further submitted that if the appellant had passed the component of CED to the customer, resultant price (inclusive of CED) would have been so exorbitant as to oust the appellant from the market though by doing so loss would have been curtailed to the extent of claim of refund. He explained that it was because of the prevailing cut throat competition which did not leave any leverage in the hands of the appellant to increase the
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prices of its product at least by the margin of CED. He has argued that the Price of cement manufactured by the appellant always remained competitive and the appellant, like, other manufacturers, could not pass on the burden of the CED to its customers and was, thus, constrained to bear losses from year to year. ' He has contended that the ability of a manufacturer to determine the price of his product is inextricably linked with and dependent upon the circumstances and regulatory mechanism governing the conduct of a business. Demand and supply situation also has its own impact. Existence of various regulatory authorities to control the prices of cement coupled with formation of cartel in the cement sector does not allow a manufacturer to fix the price on their own. In such a situation, determination of price is the outcome of interplay of market forces plus prevailing rules and regulations. This fact has also been recognized by the apex courts of our country in the case of Fecto Belarus Tractors when it observed as under:-- "71. There is yet another important point for consideration i,e, as to whether petitioner is entitled to refund of the Service Charges because in Collector of Customs v. Sheikh Spinning Mills (1999 SCM R 1402), this Court has held that the imposition of Service Charges as imposed under section 18-B of the Customs Act 1969, towards the pre-shipment inspection is ultra vires of the powers of the Federal Legislature. It is to be noted that respondents have place on record sufficient material which indicates that the petitioner had neither deposited indirect tax i,e, Sales Tax and Customs Duty nor had sold the Tractors at the agreed rate of Rs,2,30,000. They had been selling the same at a much higher rate, A ranging between Rs,3,99,000 to Rs,4,35,000 and in this manner, they had been earning profit of…
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