9911796707
TMI Blog1988 (9) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... ds as illegal, null and void and for a consequential order directing the respondents to refund the amounts collected from the petitioner-company so far and for not collecting the same in future". The respondents in the writ petition are Government of Andhra Pradesh represented by its Secretary, Forests and Rural Development, Hyderabad and other officials of the Forest Department as well as the Commissioner of Commercial Taxes, Government of Andhra Pradesh, Hyderabad. The petitioner entered into an agreement with the State Government for supply of bamboo and hardwood from the Government forest on certain terms and conditions. The agreement is dated 27th March, 1978. The Sales Tax Department demanded and collected sales tax upon the value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o sale of goods attracting sales tax. The petitioner in that writ petition was Andhra Pradesh Paper Mills Ltd., Rajahmundry. The learned Government Pleader for the Commercial Taxes submitted in the first instance that the principle of the said two decisions has no application to the facts of this case. According to him the Bench of this Court in W.P. No. 10550 of 1983 (Andhra Pradesh Paper Mills Limited v. Government of Andhra Pradesh [1989] 73 STC 26) considered the levy of sales tax under section 6-A of the Andhra Pradesh General Sales Tax Act where the tax was being levied and collected from the purchaser. He submits that in the case of this petitioner the demand is not upon the petitioner but upon the Forest Department as seller of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h as the petitioner has already passed on the burden of the said sales tax to the consumers and also because there is no allegation in the writ petition that he has not so passed on the burden to the consumer, the petitioner is not entitled to the relief. He relied upon section 33-BB of the Andhra Pradesh General Sales Tax Act which reads as follows: "33-BB. Non-refund of tax in certain cases.-Where a levy and collection of tax is held invalid by any judgment or order of a Court or Tribunal, it shall not be necessary to refund any such tax to the dealer unless it is proved by the dealer to the satisfaction of the assessing authority that the tax has not been collected from the purchaser: Provided that where any Court or Tribunal holds the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no averment by the petitioner that he has not passed on the burden of the said tax to the consumer. We must, therefore, presume that the burden was indeed passed on to the consumer. In such a case direction of refund would amount to unjust enrichment of the petitioner because the petitioner suffered no loss on that account. It is the consuming public that bore the burden and since it is not possible now to identify such consumers, the money collected should be retained with the Government to be used for public purposes. This appears to be the principle behind section 33-BB of the Andhra Pradesh General Sales Tax Act. In this connection we may quote the following observations from Ramaiah's case AIR 1986 AP 361 which in our opinion are ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on to the consumer. It is a matter for the courts to pause and consider whether in such situations they should grant stays, and finally refunds. The latest decision of the Supreme Court in State of M.P. v. Vyankatlal [1987] 64 STC 6; AIR 1985 SC 901 must guide us in this matter. It should also be noticed that the appeal before the Supreme Court in this case arose in a suit, and not in a writ petition." For the above reasons we are not inclined to grant the relief of refund. The writ petition is disposed of with the following directions: (1) It is declared that no sales tax is payable by the petitioner on the royalty and extraction charges payable by it under the agreement entered into by it with the State for supply of bamboo and h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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