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2020 (8) TMI 27 - GUJARAT HIGH COURTRefund of excess collection of tax - payment of tax at higher rate, in the absence of Form ‘C - Section 9A of the CST Act - inter-state trade and commerce - HELD THAT:- When the assessee has sold the goods on the price, which is inclusive of tax, the turnover is to be calculated as per the formula provided in Section 8A of the CST. In the facts of the case the rate of CST applicable for the goods supplied by the respondent-assessee is 4%. Therefore, 4% tax is required to be applied on the turnover as calculated under Section 8A of the CST Act. As observed above, the respondent-assessee deposited the CST at the rate of 10%/12.5% by making reverse working of the turnover under Section 8A of the CST Act. The correct amount of tax payable would be therefore, much less than what the respondent-assessee has deposited. This has resulted into the excess amount of tax deposited by the respondent-assessee amounting to Rs. ₹ 1,81,49,641/-. Moreover, on perusal of the facts on record and as per the findings of fact given by the Tribunal, it cannot be said that that the respondent-assessee has collected the excess amount of CST from its buyer/receiver of the goods. In the facts of the present case, the respondent-assessee cannot be said to have collected the CST at the rate of 10% or 12% from its buyers/receiver of the goods in view of the contract of fixed price, there is no question of passing over the same to its buyer in view of the aforesaid decisions of the Apex Court in the case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] - Even otherwise the provisions of the CST Act do not contemplate any power to forfeiture of refund by the Revenue. Thus, as held by the decision of the Supreme Court in the case of KHEMKA & CO. (AGENCIES) PVT. LTD. VERSUS STATE OF MAHARASHTRA & STATE OF MYSORE VERSUS GULDAS NARASAPPA THIMMAIAH OIL MILLS [1975 (2) TMI 91 - SUPREME COURT], the provisions of Section 31 of the VAT Act enabling the Assessing Officer to forfeit the excess amount of tax deposited by the assessee cannot be applied to the provision of the CST Act. The Appeal deserves to be dismissed and re-framed questions of law are answered in favour of the assessee and against the Revenue - Appeal dismissed.
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