TMI Blog2000 (3) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner filed an appeal against the said assessment order with a delay of 533 days. The contention raised in the appeal was that a turnover of Rs. 76,72,260 representing the sales of oil extracted from oil cakes was subjected to higher rate of tax unlike oil extracted from oil seeds. Reliance was placed on the decision of this Court in Rajashree Oils Extractions v. Deputy Commissioner (C.T.), Kurnool District [1998] 111 STC 668 (AP) [FB]; (1998) 27 APSTJ 53 in which entry 24(a) of the First Schedule to the Andhra Pradesh General Sales Tax Act, 1957 was declared unconstitutional. The petitioner therefore contended in the grounds of appeal that groundnut oil and sun flower oil extracted from oil cakes and sold within the State was illegally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine. The petitioner did not prefer any appeal against this order to the Tribunal. 3.. The petitioner contends in this writ petition that he filed the appeal "well within the period of limitation" inasmuch he came to know of the judgment of this Court on July 25, 1998 when it was published in the law journal and the starting point of the limitation should be reckoned from that date. Reliance is sought to be placed on the decision of the Supreme Court in Mahabir Kishore v. State of Madhya Pradesh [1990] 78 STC 404. We are of the view that the contention is wholly untenable and flies in the face of the specific provision of law. It is trite to say that the remedy of appeal is a creature of statute. If the special statute prescribed a parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of judgment of a competent court declaring that law void". The principle laid down in that case based on the interpretation of section 17(1)(c) has absolutely no application here where the remedy is sought to be worked out within the four corners of the Sales Tax Act. Incidentally, it may be mentioned that the broad proposition laid down in Mahabir Kishore s case [1990] 78 STC 404 (SC) based on the judgment in Sales Tax Officer v. Kanhaiya Lal Makund Lal Saraf [1958] 9 STC 747 (SC) that tax paid under mistake of law is refundable under section 72 of the Indian Contract Act, 1872 has been considerably eroded by the nine-Judge Bench decision of the Supreme Court in Mafatlal Industries Ltd. v. Union of India [1998] 111 STC 467. The decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lected the tax. As observed by the Supreme Court in Mafatlal's case [1998] 111 STC 467 "it would be legitimate for the court until contrary is established to presume that an indirect tax burden has been passed on" (vide observations in para 73). The Supreme Court while dealing with a claim for refund of the duty paid under an unconstitutional law and clarifying that the right to refund arises by virtue of article 265, in such a case, nevertheless clarified that there is no automatic or unconditional right of refund. It was observed that even in such a case, equitable considerations have to be kept in view. The dicta laid down in para 69 in STC and the concern expressed therein against unjust enrichment of an assessee are quite apposite. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty and that he has himself borne the burden of the said duty. (vi) Section 72 of the Contract Act, 1872 is based upon and incorporates a rule of equity. In such a situation, equitable considerations cannot be ruled out while applying the said provision. (vii) While examining the claims for refund, the financial chaos which would result in the administration of the State by allowing such claims is not an irrelevant consideration. Where the petitioner-plaintiff has suffered no real loss or prejudice, having passed on the burden of tax or duty to another person, it would be unjust to allow or decree his claim since it is bound to prejudicially affect the public exchequer. In case of large claims, it may well result in financial chaos in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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