TMI Blog2009 (7) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... of entertainment duty comes within the purview of the definition of "tax", we see no reason to justify the conclusion of the High Court that the State Government for all intents and purposes conferred the retention benefit. If the State intended to provide for a grant, the same should have expressly been stated. The respondent cannot be granted a huge amount by a welfare State indirectly which it cannot do directly. Direct that the State shall realize the amount to the extent the respondent had unjustly enriched itself and pay the same to a voluntary or a charitable organization, which according to it is a reputed civil society organization and had been rendering good services to any section of the disadvantaged people and in particular women and children. We would request the honourable Chief Minister of the State to take up the responsibility in this behalf so that full, proper and effective utilization of the amount in question is ensured. - Civil Appeal No. 4718 of 2009 - - - Dated:- 27-7-2009 - SINHA S.B. AND DEEPAK VEARM JJ. H.N. Salve, Senior Advocate, (Shyam Dewan, E.C. Agrawala, Mahesh Agarwal, Rishi Agrawala, Vineet Naik, Ameet Naik and Ravi Suryavanshi, Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Section 3 of the said BED Act provides for duty on payments for admission to entertainment which is fixed by the proprietor in so far as it relates to exhibition by cinematograph including video exhibition other than exhibition by means of any type of antenna or cable television within limits of the various corporations which have been prescribed in the table. Explanation clause (b) and clause (c) of section 3(1) of the said BED Act of 1923 came to be substituted by Act No. 22 of 2003, dated August 1, 2003. Serial No. Area Rate of entertainment duty on payment for admission by the proprietor 1 Within the limits of Brihan Mumbai Municipal Corporation 45 per cent Therefore, the prevailing rate of entertainment duty on payment for admission fixed by the proprietor within the limits of Brihan Mumbai Municipal Corporation was specified as 45 per cent by virtue of sub-section (13)(a) of section 3 which was added by Maharashtra Act 2 of 2002, section 3 wherein certain incentives were provided for proprietors of multiplex theatre complex. Sub-clause (b) of sub-section (13) of section 3 provided for concession in duty as provided in cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A)) Rs. 100 Entertainment duty on the net rate at 45 per cent (B) Rs. 45 Total ticket price will be (A)+(B) Rs. 145 If the total ticket rate is Rs. 100 then the net rate will be Rs. 68.97 and the duty at 45 per cent of the net rate will be Rs. 31.03. The calculation is explained below in the case of net rate of Rs. 100 and net rate of Rs. 68.97 with the corresponding total price of Rs. 145 and Rs. 100. Total ticket price Net ticket price (payment for admission) (i) Rs. 145 Rs. 100 (ii) Rs. 100 Rs. 68.97 Hence, the entertainment duty leviable at 45 per cent on Rs. 68.97 is Rs. 31.03 This method of computation is as per the provisions of section 3(13) (a) read with section 4 of the said BED Act. Therefore, for the fourth and fifth year the petitioner is liable to pay 25 per cent of this collected 45 per cent entertainment duty, i.e., Rs. 7.76 (11.25 per cent of 68.97 OR 1/4th of 31.03) to the Govern- ment and remaining 75 per cent of 45 per cent, i.e., Rs. 23.27 is the retention benefit of the multiplex theatre proprietor/operator. (d) ... Section 5 of the said BED Act of 1923 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is as follows: (i) 'As a result of the onslaught of cable television and advancement in the field of information technology, the average occupancy in cinema theatres has fallen considerably and hardly any new theatres have been started in the recent past. Public at large these days prefers to see movies at home. Keeping in view this scenario, a concept of complete family entertainment center, more popularly known as "multiplex theatre complex" has emerged. These multiplex theatre complexes offer various entertainment facilities for the entire family under single roof. However, those complexes are highly capital intensive, their gestation period is also quite longer, and therefore, need Government support and incentive in entertainment duty. (ii) The Government of Maharashtra, therefore, considers it necessary to encourage, by giving incentives for the construction of new cinema theatres and to ensure the healthy cultural development in the State of Maharashtra. (iii) Government has therefore, with a view to commemorate the birth centenary of Chitrapati late Shri V. Shantaram, decided to grant concession in entertainments duty to multiplex theatres complexes to promote con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss than one month, in a year, exclusively for Marathi cinemas; (iii) The proprietor of a complex shall not levy the service charge, till the period of concession under clause (a) is over. After the concession period is over, the proprietor may levy service charges as specified in the second proviso to clause (b) of section 2; (iv) The multiplex theatre complex shall be continued continuously for ten years; (v) No facilities provided in the complex as specified in the notification issued under clause (f-a) of section 2, shall be discontinued or curtailed, without prior permission of the Government. (c) In case of violation of the condition (iv) or (v) of clause (b), the concession shall be liable to be withdrawn and the duty shall be levied and collected from the date of commencement of the multiplex theatre complex, at the rate specified in clause (b) and clause (c) of sub-section (1) or, as the case may be, sub-section (3), along with the interest leviable at the rate specified in section 22. (d) If any existing cinema theatre is converted into multiplex theatre complex, by not reducing its original seating capacity and by complying with the provisions of clause (f-a) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficates are granted/issued under the Act is in the nature of the exemption from payment of entertainment duty by the multiplex theatre proprietor/operator (the State Government is not to collect from such proprietor/operator, duty for three years and collect duty at 25 per cent of the rate of entertainment duty leviable for the subsequent two years). It is the case of the petitioner that he received its conditional letter of indent dated April 16, 2002 and the eligibility certificate received on June 7, 2002 and became eligible for the concession/exemption provided under section 3(13)(a) of the said BED Act read with para 5(E)(i) of the said GR. On September 21, 2000 the Government passed a Resolution bearing No. ENT-1099/P.K.215/t-1 (hereinafter referred to as, 'printing resolution') copy of which is annexed as exhibit 'D' whereunder it has stipulated the manner in which cinema tickets must be printed which is relevant to point out in view of the impugned notices/impugned orders. The printing resolution sets out that the cinema ticket must reflect the following: (i) Net rate of the ticket (ii) Amount of entertainment tax (iii) Service charge, if any (iv) The aggregate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also in respect of entertainment duty payable in the fourth year of exemption. In the light of the aforesaid, the petitioner set out the duty payable in the fourth year of exemption on the basis of section 3(13)(a)(ii) of the said BED Act read with clause 5(E)(i) of the said GR. Exhibit 'E' to the petition is a copy of the said letter. On August 18, 2005 the respondent No. 1 addressed a notice to the petitioner calling upon the petitioner to remain present on August 23, 2005 before the Principal Revenue Secretary for the purposes of discussing the 25 per cent entertainment duty payable by the petitioner in its fourth year. Exhibit 'F' to the petition is a copy of the said notice. Pursuant to the said notice, on August 23, 2005, the petitioner's representatives along with the representative, of another multiplex theatre known as Imax-Adlabs, who were also issued a notice, attended the office of the Principal Secretary of respondent No. 1. The Principal Revenue Secretary of respondent No. 1 contended that the exemption by virtue of the Act was not in the nature of a retention benefit and that the entertainment duty computed by the Additional Collector (MSD) was proper. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prehend as to how respondent No. 4 arrived at the said interest. The petitioner also called upon respondent No. 4 to clarify the manner in which respondent No. 4 has arrived at the figure of Rs. 1,16,95,846 and the statutory provisions under which respondent No. 4 was levying interest at 24 per cent. The petitioner in summation requested respondent No. 4 for a meeting in person so as to enable the petitioner to explain its position (after receiving a response to the petitioner's queries) and as to how the duty demanded by respondent No. 4 was not correct. Exhibit 'H' to the petition is a copy of letter dated December 10, 2005 addressed by the petitioner to respondent No. 4. There was no reply to the letter of the petitioner of December 10, 2005. However, to the petitioner's surprise, on December 30, 2005, when a peon of the petitioner visited the office of respondent No. 3, the peon of the petitioner was handed over the notice dated December 30, 2005 being exhibit A-2 to this petition. The petitioner in response to notice No. 2, on December 31, 2005 (exhibit 'I' annexed to the petition) addressed a letter to the respondent No. 4 in which the petitioner contended that: (i) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tached to notice No. 3 was erroneous. The petitioner also in its said response called upon respondent No. 4 not to initiate any action in view of the present writ petition pending admission. (exhibit 'N' is the copy of the said response of the petitioner dated January 30, 2006) On the other hand, though the respondents have not disputed the fact that by way of policy decision only with a view to commemorate the birth centenary of Chitrapati late Shri V. Shantaram, decided to grant concession in entertainment duty to multiplex theatre complexes to promote construction of new cinema houses in the State which led to incorporation of section 3(13)(a) of the said BED Act and accordingly, no entertainment duty is to be levied upon multiplex theatre complex for the first three years from the date of commencement and for the subsequent two years, they are to be levied 25 per cent of the rate of duty leviable under the Act and from the sixth year full amount of duty is leviable. It is their case that since the period of first three years in respect of Fame Adlabs Multiplex was to be completed by June 6, 2005, the petitioner was made aware about the payment of entertainment duty at 25 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made to believe that full entertainment duty has been charged to him when in fact, the Government would be receiving only one-fourth the amount. Therefore, the interpretation of the Government resolution dated January 4, 2003 of the petitioner is not proper and that the petitioner can charge only one-fourth of the normal entertainment duty during two years of period when concessional rate of 25 per cent is applicable. Therefore, the one-fourth entertainment duty so charged during this period should be passed on to the Government. It is the case of the respondents that the petitioner is trying to usurp the amount of entertainment duty illegally collected and retained by them and that taxes and duties charged have to be paid to Government and cannot be allowed to be retained by anyone. It is the case of the respondents that circular dated January 5, 2006 has been issued by the Government which clarifies and covers the issue relating to the subject-matter of the above petition and it is on issuance of the circular, the petitioners have themselves taken remedial measures and stopped 'retaining' any amount collected by them as entertainment duty since January 20, 2006. Therefore, acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entertainment duty amount should be reflected on the tickets, during the fourth and fifth year of exemption. It is only after the meeting dated August 23, 2005 with the Revenue Secretary and after the filing of the present petition by the petitioner, that the respondents came out with a clarification vide the circular dated January 5, 2006, which for the first time prescribed that, 'for the period of first three years from the date of receipt of eligibility certificate, the multiplex theatre complex should not mention the entertainment duty amount in the total admission fee. During the next two-year period, along with the said admission fee, they should show entertainment duty amount not more than the prevailing rate of 25 per cent of the duty in the total admission fee. Such instructions should be given to all multiplex theatre complexes.' Till this circular, the printing of tickets was governed by the exhibit D to the petition and the petitioner was complying therewith. They say that if this clarification was given earlier, no problem would have arisen and the petitioner would not have come before this honourable court. The change in the printing/contents was brought about o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... December 5, 2005, there was no demand made on the petitioner and the period of 30 days as contemplated under section 9B, had in fact not begun or expired. Therefore, as the levy of 24 per cent interest can take place only after the expiry of the aforesaid 30 days, the said levy of interest is without any basis and on the face of it is unjust and illegal. It is the contention of the learned counsel for the petitioner that the case of the respondent that the nature of exemption contemplated by virtue of the Act and the Government Resolution (GR's) issued thereafter is in the nature of a retention benefit which benefit is available to the proprietor/ operator of a multiplex theatre complex as can be made out from the perusal of the Statement of Objects and Reasons of the Ordinance wherein it is clear that the Government recognised that setting up of multiplex theatres was a capital intensive business and, therefore, it was necessary to make exemptions available to such multiplex proprietors/operators to invest a huge amount of capital and as such, the recipient of this benefit was the proprietor/operator and not the patron/customer. It is further contended that when the intention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o collect admission fee and not pay entertainment duty for first three years and only 25 per cent of the duty for next two years in the manner prescribed under the Act and orders thereunder. The petitioner therefore, submits that the contentionof respondent No. 4 as set out in the impugned notices/impugned orders that the petitioner must pay to respondent No. 4 the entertainment duty collected from the patrons, is erroneous and bad in law. Mr. Tulzapurkar, the learned Senior Counsel for the petitioner, has offered an explanation as to why the petitioners were required to reflect on its tickets entertainment duty collected from the patron/consumer. The petitioners were liable to pay entertainment duty at 25 per cent of the entertainment duty collected from the patron/consumer and, therefore, at the most, the respondents could levy and recover only 25 per cent of 45 per cent which has been shown as entertainment duty on the admission ticket from the petitioner. Mr. Tulzapurkar, the learned Senior Counsel for the petitioner, submitted that accordingly the petitioner has correctly filed his return and has duly paid the entertainment duty which was levied and required to be paid, i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the G.R. dated September 20, 2000 has clearly specified the new procedures to be followed as given in annexure 1 and the format of permission to be granted for sale of computerised ticket as shown in annexure 2 and it gives in detail that how the computerised tickets are to be printed and what are the particulars to be printed on it and that sale of tickets of the movie which is exempted from entertainment tax, the tickets should have printed on it 'tax free' and price of ticket after deduction of tax should be printed on the ticket and in what manner each ticket should be printed in the format as provided and how entertainment duty is to be computed and paid to the Government. It is submitted that during the period of concession, it was necessary to get audited the accounts registers for the sold tickets (daily ticket selling register) or daily recover register and payment of the fees and B and E statements from the chartered accountants. And thereafter the said chartered accountant shall issue the certificate in writing for the same and accordingly, the petitioners' chartered accountant has duly filed B and E statement which clearly goes to show that during the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o levy is permissible under entry 52. It is not possible to distinguish the said decisions on the grounds suggested by the appellant. Besides, octroi or any impost in the nature of that impost has always been looked upon with certain amount of disfavour. Acceptance of the State's contention in this case would ultimately result in driving up the price of these goods to the consumer. It would become another sales tax in effect.' In the case of State of Madhya Pradesh v. Vyankatlal [1987] 64 STC 6 (SC) it has been held as under: (page 11) 'The principles laid down in the aforesaid cases were based on the specific provisions in those Acts but the same principles can safely be applied to the facts of the present case inasmuch as in the present case also the respondents had not to pay the amount from their coffers. The burden of paying the amount in question was transferred by the respondents to the purchasers and, therefore, they were not entitled to get a refund. Only the person on whom lay the ultimate burden to pay the amount would be entitled to get a refund of the same. The amount deposited towards the fund was to be utilised for the development of sugarcane. If it is not pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he meaning of entry 54 of List II nor can the State Legislature under the guise of incidental or ancillary power do indirectly what it cannot do directly ...' It is therefore, submitted that the authorities on which reliance is placed on behalf of the respondents is of no assistance to the respondents and, therefore, the contention of the respondents to claim the amount cannot be sustained. On going through the rival contentions and the relevant provision of the said BED Act, there is no dispute over the fact that it is not that the petitioners are seeking refund of the amount paid to the State on the ground that the petitioner is entitled to rebate in the entertainment duty and, therefore, entitled to refund of the same. This is a case where the petitioner is claiming that it was granted exemption from payment of entertainment duty in the scheme as incorporated in section 3(13)(a) of the said BED Act of 1923 as specified in sub-clauses (i), (ii) and (iii) and particularly the issue relates to the period section 3(13)(a)(ii), i.e., for the subsequent two years, at the rate of twenty-five per cent of the rate of duty leviable under clause (b) and clause (c) of sub-section (1) or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therefore, need Government support and incentive in entertainment duty. (2) The Government of Maharashtra, therefore, considers it necessary to encourage, by giving incentives for the construction of new cinema theatres and to ensure the healthy cultural development in the State of Maharashtra. (3) Government has therefore, with a view to commemorate the birth centenary of Chitrapati late Shri V. Shantaram, decided to grant concession in entertainments duty to multiplex theatres complexes to promote construction of new cinema houses in the State. (4) To preserve and promote Marathi cinema, it is made obligatory on owners of such complexes to reserve one screen for a total period of one month, in a year, exclusively for Marathi cinemas. (5) The important salient features of the Bill are as follows: (a) It is one of the conditions that in the Brihan Mumbai Municipal Corporation Area there should be minimum four theatres in a complex with the total minimum seating capacity of 1,250 and elsewhere in the State not less than three theatres with minimum total seating capacity of 1000. (b) Special concession is offered as an incentive for a period of five years in the entert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the rate of duty leviable under clause (b) and clause (c) of sub-section (1) or, as the case may be, for sub-section (3) and (iii) from the sixth year, full amount of duty leviable at the rate specified in clause (b) and clause (c) of sub-section (1) or, as the case may be, sub-section (3) provided that, the duty leviable shall also be subject to the provisions of sub-section (2), wherever applicable and Explanation provided for the purpose of this sub- section which speaks for itself. Therefore, it is quite clear that this was by way of an incentive offered to the proprietors of multiplex theatre complex on the terms and conditions specified in the Act in section 3, sub-section (13) of the said BED Act. Mr. Tulzapurkar, the learned senior counsel rightly submitted that this is not a case that these incentives were provided to the patrons of multiplex theatre complexes and should not be misconstrued as an exemption provided under section 6 of the said BED Act of 1923 of which the object and purpose is totally different. Section 3 clearly provides that entertainment duty shall not be levied on payment for admission to any entertainment where the Collector is specified for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Rs. 41.95 which is 45 per cent of the gross total, i.e., Rs. 135. Therefore, the net admission fee is shown as Rs. 93.05. This according to the learned counsel for the petitioner was required to be printed as proprietors of multiplex were not enjoying 100 per cent tax exemption and, therefore, they printed the entertainment tax as per the rate prevalent in the municipal area which is required to be published on the ticket as per rules but they were liable to pay 25 per cent of 40 per cent of the entertainment tax, i.e., Rs. 41.95. After the circular they have corrected it and they have shown entertainment tax as Rs. 13.70 which is 25 per cent of 40 per cent which restricted in showing admission fee as Rs. 121.30, the gross total remaining the same, i.e., Rs. 135. The petitioner's case, therefore, is squarely covered in so far as their liability to pay entertainment duty for the said period is concerned when they were eligible to enjoy 75 per cent tax exemption. Therefore, whether they have shown 45 per cent of the admission fee as entertainment tax or 25 per cent on the ticket issued to patrons, their liability to pay entertainment tax/duty would be to the extent of 25 per cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the case may be, for sub-section (3). In so far as the petitioner theatre is concerned, it was the duty which is required to be levied as specified in the table of clause (c) of section 3, i.e., within the limits of Brihan Mumbai Municipal Corporation where the rate of entertainment duty on payment for admission fixed by the State is 45 per cent. Therefore, there is no vagueness about the incidence of tax and the person who is liable to pay tax. On the other hand, there is a clear indication of the character of tax from the incidence of such tax or taxable event which takes place on the happening of the event of offering entertainment in the multiplexes. The person on whom legal liability to pay tax falls has also been clearly and unambiguously mentioned in the charging section. The rates of tax have been sought to be specified in the notification. The measure of tax is the 'gross receipt' on the basis of which the person is saddled with the liability to pay tax. Therefore, it is clear that there is no uncertainty or vagueness in the incentive scheme provided in the legislation. So even though the petitioners have shown entertainment tax/duty in the computerised ticket by ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inment duty officers but the fact cannot be disputed that this circular whether it was by way of guidelines or clarificatory in nature came to be issued as there was some misunderstanding as regards compliance of the rules which require printing of the entertainment tax on the admission ticket to be issued to the patrons. To conclude, it cannot be said that merely because the proprietors printed full entertainment tax duty on the admission ticket though they were only liable to pay 25 per cent of the entertainment tax duty for a period of two years for which they were eligible for 75 per cent exemption of the entertainment tax, they are liable to pay 100 per cent entertainment tax without there being any express authority of law created by the statute. On the other hand, it would deprive them of the incentive which has been specifically offered under the scheme for which the Act came to be amended and would be in total conflict with the object and reasons with which the Government sought amendment of the Act nor this can be considered as a case of unjust enrichment as even, otherwise, the gross admission fee which the patron is supposed to pay minus the entertainment tax and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lected by the respondent on its tickets for the period between June 24, 2005 and September 22, 2005, i.e., Rs. 1,16,95,846. On or about December 30, 2005, the appellant issued another notice demanding Rs. 1,16,95,846 within 48 hours. Further on January 21, 2006 it issued a further demand notice to the respondent for a sum of Rs. 70,39,529 for the period between September 23, 2005 and January 5, 2006. The writ petition having been filed questioning the legality and/or validity of the said notices of demand, the High Court by reason of the impugned judgment directed: " 62. To conclude, it cannot be said that merely because the proprietors printed full entertainment tax duty on the admission ticket though they were only liable to pay 25 per cent of the entertainment tax duty for a period of two years for which they were eligible for 75 per cent exemption of the entertainment tax, they are liable to pay 100 per cent entertainment tax without there being any express authority of law created by the statute. On the other hand, it would deprive them of the incentive which has been specifically offered under the scheme for which the Act came to be amended and would be in total conflict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring theatres for which it used to issue computerized tickets. (ii) Having regard to the change in the economic scenario, the respondent was entitled and, thus, charged the entire amount; the total whereof came to Rs. 135 at all stages. The State having granted exemption to the respondent for the first three years although it had charged a total sum of Rs. 135 from the cinema-goers, it is estopped and precluded from demanding any sum when the respondent was required to pay only 25 per cent of the duties. (iii) The admission charges collected by the respondent being a matter of contract by and between it and the cinema-goers and the Act having not provided for any forfeiture clause, the question of the respond- ent's being unjustly enriched does not arise, particularly, when it is not a case where the amount of tax had been deposited which the State was entitled to keep with it having regard to the statutory provisions in this behalf. Statutes The State of Bombay enacted the Act to impose a duty in respect of admission to entertainment. Section 2 of the Act is the interpretation section. "Payment for admission" has been defined in section 2(b) to mean: "(b) 'payment f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shes a multiplex theatre complex, on the one hand, and a permanent cinema, quasi-permanent cinema, on the other. "Multiplex theatre complex" has been defined in section 2(fa) of the Act to mean an entertainment-cum-cultural centre which provides: "(i) within the limits of Municipal Corporation of Brihan Mumbai not less than four theatres in a complex with minimum total seating capacity of 1250; and (ii) anywhere else in the State, not less than three theatres in a complex with minimum total seating capacity of 1000 ...." "Permanent cinema" or "quasi-permanent cinema" has been defined in section 2(f1) to mean a cinema which is licensed as a permanent cinema or a quasi-permanent cinema, as the case may be, under the Maharashtra Cinemas (Regulation) Rules, 1966. The charging section is section 3 of the Act in terms whereof "there shall be levied and paid to the State Government (sic) all payments for admission to any entertainment" subject to the exceptions contained therein and the rates specified therefor. The relevant portion of section 3(13) of the Act reads as under: "(13)(a) Notwithstanding anything contained in any other provisions of this Act, but subject to the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Government, of the gross sum received by the proprietor on account of payments for admission to the entertainment and on account of the duty; (b) in accordance with returns of the payments for admission to the entertainment and on account of the duty; (c) in accordance with the results recorded by any mechanical contrivance which automatically registers the number of persons admitted: Provided that, the State Government may suo motu, by general or special order in the Official Gazette, direct the proprietor of any entertainment or class of entertainment to pay the amount of duty due, in accordance with the returns of the results recorded by any mechanical contrivance referred to in clauses (b) and (c), as the case may be: Provided further that, the prescribed officer may, within fifteen days from the date of receipt of the application as aforesaid, reject the application after giving an opportunity of being heard to the applicant and recording reasons for such rejection. (3) The provisions of sub-section (1) of this section and of section 5 shall not apply to any entertainment in respect of which the duty due is payable in accordance with the provisions of sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for such period as he thinks fit, exempt any proprietor from the operation of this rule or any part thereof. 16. Returns required under section 4(2)(a) and (b). Every proprietor making a consolidated payment under clause (a) of sub-section (2) of section 4 or making payment in accordance with return of the payments for admission under clause (b) of sub-section (2) of section 4, shall, within ten days of the date of entertainment, submit to the prescribed officer a return in form 'B', showing the number of tickets (not being complimentary tickets) issued at each rate, the serial number of tickets issued, the gross amount received from the sale of tickets and the amount of duty payable to the State Government. He shall, if so required by the prescribed officer, also submit to the said officer, within ten days of the date of entertainment, a return in form 'C', showing the price of programme or synopsis including duty, the number of programme or synopsis issued, the gross amount received from the sale thereof and the amount of duty payable to the State Government." Form "B" attached to the Rules read as under: FORM "B" (See rule 16) Statement of tickets not being c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry will be developed healthy." In the said resolution, it was further stated: "(i) The applicant will be eligible to get the exemption from paying entire entertainment tax for period of first 3 initial years from the date of commencement of the complex, whereas, he will be admissible exemption (sic) from paying 75 per cent of the entertainment tax due for the fourth and fifth years. The applicant must pay the entertainment tax at the prescribed rate from the sixth year." Section 72 of the Indian Contract Act, 1872 reads as under: "72. Liability of person to whom money is paid or thing delivered by mistake or under coercion. A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it." Article 296 of the Constitution of India reads as under: "296. Property accruing by escheat or lapse or as bona vacantia. Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall, if it is property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 3 of the Act uses the words "concession in duty". It becomes available to the proprietor of the multiplex theatre complex only in the event the terms and conditions specified therein are fulfilled. Sub-clause (i) of clause (b) of sub-section (13) of section 3 provides that the proprietor shall not charge less payment for admission than the prevailing highest rate of admission at any given time in any of the cinema theatres in the district in which the complex is sit- uated till the period of concession under clause (a) is over. Section 2(b) of the Act provides for an inclusive provision. The provision is not exhaustive although expansive. The payment for admission must be in relation to the levy of entertainment duty. The words "in relation to" are of great signif- icance. The payment for admission being in relation to the levy of enter- tainment duty, there cannot be any composite price for the tickets. Mr. Salve may be correct that rule 7 of the Rules would not be applicable in the instant case but we are not concerned therewith. But except for complementary tickets, all other tickets are required to be in three parts. They must fulfil the other criteria laid down t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs power on an assessee to realize the amount of tax payable to the State from its customers or not, in our opinion, is wholly immaterial. The fact remains that it has to collect such taxes which are to be collected from the consumers and are required to be levied. Once the taxes are levied, section 3 of the Act entitles the State to collect the same from the owner of the multiplex theatre complex, subject, of course, to the concession which had been given to them. The term "concession " is a form of privilege. (See V. Pechimuthu v. Gowrammal [2001] 7 SCC 617, P. Ramanatha Aiyar, Advanced Law Lexican (New Delhi: Wadhwa Company, Nagpur, 2005 Volume 1 page 944). The term "exemption" is also a form of privilege. When a statute confers a privilege, the same must be confined only to the extent provided for therein. A proprietor of a multiplex cinema theatre when collects tax by way of entertainment duty from the cinema-goers, it would be entitled to collect such tax which is subject to levy and collection by the State. The authority in this behalf is implicit. For the aforementioned purpose, only the statute provides for the mode and manner in which the tax is to be collected. Onc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese norms is the peril to the order passed. The effect of mala fides on exercise of administrative power is well-established." Kailasam, J. observed as under See at page 528 of [1977] 40 STC.: "63. ... It was submitted that where the assessee innocently collected amounts on the impression that tax was leviable, the amounts so collected were forfeited while his obligation to the purchasers to refund the amounts continued. If the assessee by a mistake failed to collect tax from the purchasers, tax was levied and collected from the assessee making him suffer in any event. When after a costly litigation, the assessee succeeded in establishing that sales tax cannot be collected on the railway freight on cement bags or inter-State sales, the Government promptly forfeited such amounts. We agree these are instances of hardship to the assessees and deserve Government attention. But for that reason the courts cannot say that the act is beyond the legislative competence. The fact that in some cases the dealers are prejudiced would not affect the validity of the legislation which is the question we are called upon to decide. On a careful consideration of the points raised, I am satisfie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture, in our considered opinion, cannot be interpreted in such a manner so as to enable an entrepreneur to get undue advantage to the effect that he would collect tax from the cinema-goers and appropriate the same. When a person collects tax illegally, he has to refund it to the tax-payers. If the tax-payers cannot be found, the court would either direct the same to be paid and/or appropriated by the State. In a given case, this court in exercise of its jurisdiction under article 142 of the Constitution of India may also issue other directions, as has been done in Indian Banks' Association, Bombay v. Devkala Consultancy Service [2004] 11 SCC 1 See [2004] 2 RC 840. in a similar situation where it was difficult for the court to direct refund of a huge amount to a large number of depositors from whom the bank had illegally collected, this court directed that the amount be spent for the benefit of the disabled in terms of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. This court may take recourse to such a procedure as the State also having granted exemption was not entitled to collect the duty. In other w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched." (See Union of India v. Solar Pesticides Pvt. Ltd. [2000] 2 SCC 705). In Sahakari Khand Udyog Mandal Ltd. v. Commissioner of Central Excise Customs [2005] 3 SCC 738 See [2005] 4 RC 567., this court has held See para 48 at page 581 of [2005] 4 RC.: "45. From the above discussion, it is clear that the doctrine of 'unjust enrichment' is based on equity and has been accepted and applied in several cases. In our opinion, therefore, irrespective of applicability of section 11B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11B of the Act or similar provision merely gives leg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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