The CBR ruling of 2004 never permitted sales tax refund to any sector, but it was deliberately interpreted to ensure payment of illegal refunds to the payphone companies in the field formations. "If Law Division's opinion on ruling is considered to be correct, even then the payphone companies were not entitled to refund at any stage", officials said.
Sources told Business Recorder on Sunday that the ruling had sufficient legal backing of the provisions of Central Excise Act and Sales Tax Act, 1990 to clarify the issue of discounted-price.
Relevant tax officials were surprised over the Law and Justice Division ruling that the CBR clarification of 2004 was not correct.
According to sources, the ruling in question was properly issued after obtaining due approval of tax authorities keeping in view all relevant sales tax/excise laws. The Law Division verdict is not binding on the CBR, but it is only Advisory for the tax authorities.
The CBR has the option to go to the Attorney General of Pakistan to confirm the authenticity of ruling issued in December 2004. There is no reason that the Attorney General would endorse the CBR interpretation of basis VAT principles.
Through ruling-2004, the CBR had clarified that the Central Excise Act has provided that wherever duty is levied in Value Added Tax (VAT) mode, all rules and regulations of Sales Tax Act will apply. The relevant section of Sales Tax Act to clarify the definition of supply says that in case of supply at discount price, the discounted price/value shall be taken for the purpose of the levy.
Accordingly, the Board has clarified that the excise duty be paid on discounted price. A specific provision of law was clarified through this ruling, which does not allow entitlement of refund to any sector. How these companies can claim refund on the basis of this ruling where no such provision was granted, sources asked.
Contrary to this, the ruling was deliberately twisted to issue refunds to the companies. Now, the companies are merely putting blame on the ruling-2004 which has nothing to do with the refund issue. However, this would not justify their illegal claims obtained in connivance with some corrupt tax officials.
This clarification was based on the provisions of the Central Excise Act promulgated through the Finance Act.
In any case, the companies were entitled to refund, as the incidence of tax was passed on to the consumers. Neither PTCL Nor payphone companies were entitled to any refund, as tax incidence was passed on to the end consumers.
Law Division had ruled that mode of collection does not change status of actual levy. Thus, the levy of CED remains on services. The concept of discount price is alien to central excise duty and it is only relevant to the sales tax as contained in clause-B of sub-section 46 of section 2 of the Sales Tax Act. Excise duty was in-built in the discounted price and incidence was passed on to the consumers, which could not be refunded. Any discount in price by PTCL to the payphone companies was a commercial transaction. This transaction has nothing to do with the central excise duty.
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