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TMI Blog2003 (4) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... st place, the issue arises in many cases, and secondly, there is no binding decision of this Court directly on the subject. The Sales Tax Appellate Tribunal upheld the forfeiture of excess sales tax collected under the CST Act by the petitioner and dismissed the appeal. 2.. The sole question arising from the Tribunal's decision raised by the petitioner is given below: Whether, on the facts and in the circumstances of the case, has not the Appellate Tribunal gone wrong in holding that forfeiture of the excess tax collected by the revision petitioner is legal, in view of the provision in section 46A of the KGST Act, when there is no specific provision in the CST Act. 3.. We have heard counsel for the revision petitioner and Government Plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e person from whom it was collected. (2) Where any sum is forfeited to the Government under subsection (1), any person from whom the amount was collected in contravention of the provisions of sub-section (2) or sub-section (3) of section 22 may apply to the assessing authority for reimbursement of such sum and the amount shall be reimbursed to such person in the prescribed manner. (3) No prosecution for an offence under this Act shall be instituted in respect of the same facts on which a penalty has been imposed or forfeiture has been ordered under this section." From the above it is clear that while sub-section (1) of section 46A provides for levy of maximum penalty up to rupees five thousand and forfeiture of excess tax collected, sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied that the statement submitted is correct and complete, it shall refund the amount within 90 days of receipt of the statement in form 40, as provided in rule 67." From the above it is clear that once a person from whom excess tax collected by the dealer and forfeited to the Government makes an application in form No. 40 prescribed under rule 31D along with convincing documents as proof for such collection, and forfeiture by Government, the officer who has forfeited the tax has to refund such excess collection to such person from whom it is collected. Therefore under the scheme, Government is not the beneficiary of the forfeiture and it is the duty of the Government to reimburse the amount to the person from whom it is collected after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax that is not really due to it for the reason that it is collected by the dealer from the buyer, is not correct. 5.. Viewing the provisions of the Act and Rules as explained above, wherein the Government is only the custodian of the amount for a transitional period, we do not think the above decision of the Supreme Court in India Carbon Ltd.'s case [1997] 106 STC 460, wherein the Supreme Court has held that interest for belated payment of tax being a substantive provision and in the absence of a specific provision under the CST Act, cannot be charged under the procedural provisions of the State Act made applicable for assessment, levy and collection of CST, applies to this case. Even though the decision of the Madras High Court and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serting section 9(2B) by Finance Act, 2000, there is specific provision for penalty under section 10(f) of the CST Act for collection of any amount by way of tax in contravention of the provisions of section 9A of the CST Act. 6.. Therefore what is left by the CST Act to be taken over by the local sales tax law is only the procedure in regard to assessment, collection of tax and enforcement of payment of tax, which takes in the scheme for forfeiture of excess tax collected and for reimbursement of the same to the buyers from whom it is collected. We feel the scope of section 46A is consistent with the provisions of the CST Act and action taken under the said provision cannot be questioned for want of jurisdiction. T.R.C. is therefore dism ..... X X X X Extracts X X X X X X X X Extracts X X X X
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