TMI Blog2023 (8) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... oner covered by the impugned order should be refunded back to the petitioner as the petitioner would have passed on the incidence of tax to its customers - If the petitioner had produced evidence that the incidence of tax was not passed on to the customers, it is not on the part of the duty of the Department/State Government to retain the tax, which was otherwise not due to it. The impugned order set aside and case remitted back to the respondent to pass a fresh order after calling upon the petitioner to show cause as to how the tax amount, which has been paid by the petitioner pursuant to the impugned order should not be retained by the State Government on account of unjust enrichment. The respondent shall pass appropriate orders kee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is generally recognized beyond the necessary requirements of an average member of society and not articles of luxury ............ 93. Given the language Entry 62 and the legislative history we hold that Entry 62 of List II does not permit the levy of tax on goods and articles. In our judgment, the word luxuries in the entry refers to activities of indulgence, enjoyment or pleasure. In as much as none of the impugned statutes seek to tax any activity and admittedly seek to tax goods described as luxury goods, they must be and are declared to be legislatively incompetent. 5. Pursuant to the aforesaid decision of the Hon'ble Supreme Court, the Government of Tamil Nadu issued Notification in G.O.Ms.No.201, Commercial T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner Vs. The Assistant Commissioner (CT) (FAC), Chennai and another in W.P.Nos.26573 to 26575 of 2009 dated 23.12.2009. (ii) M/s.Mohanlal Jewellery, represented by its Proprietor Vs. The Commercial Tax Officer, Chennai and another in W.P.Nos.26130 to 26132 of 2006 dated 01.08.2019. and is therefore prays for allowing this writ petition. 11. Opposing the prayer, the learned Government Advocate for the respondent would submit that the Assessment Order is dated 17.08.2015 wherein, the present writ petition has been filed only on 21.02.2020. 12. It is therefore submitted that the writ petition is liable to be dismissed on account of latches. 13. That apart, it is submitted that the Assessment Order also states that the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Tamil Nadu Tax on Luxuries Act, 1981 has not been declared as ultra vires . At the same time, the Government has taken note of the decision of the Hon'ble Supreme Court in M/s.Godfrey Phillips India Limited case (referred to supra) and thus, had issued notification dated 29.12.2004 in G.O.Ms.No.201, Commercial Tax (C2) Department. 21. In this connection, the decision of the Hon'ble Supreme Court in Unichem Laboratories Vs. Commissioner of Central Excise , (2002) 7 SCC 145, is invited, wherein, the Hon'ble Supreme Court has held that it is not on the part of the duty of the Department to collect or to retain the tax amount, which is not due to it. 22. The respondent ought to have called upon the petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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