TMI Blog2010 (2) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... Before an order of forfeiture can be made under section 18AA of the Act, it is necessary to have material to show that there has been unjust enrich ment or circumstances which are relevant for making an order of forfeiture should be clear and such material has to be on record before the concerned authority. In the face of the aforesaid opinion expressed by the Deputy Commissioner of Commercial Taxes, wherein the said authority is not sure as to whether sales tax was collected at all by the assessee and as to whether sale bills were inclusive of admissible tax, he could not have concluded that the assessee had an unjust enrichment and therefore order for forfeiture. In our view, the same cannot be held to be just and proper as the said order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the said product for the relevant period. The respondent being aggrieved by the said order passed under section 18AA of the Act filed an appeal before the appellate authority which was dismissed confirming the order passed by the assessing authority. The said matter was carried in appeal before the Tribunal, which, by its order dated May 31, 2005 has allowed the appeals and thereby set aside the order passed by the assessing authority which was confirmed by the appellate authority. Being aggrieved by the said order, the State has preferred this appeal raising the following questions of law: 1. In the facts and circumstances of the case, whether the Appel late Tribunal was right in holding that the authorities were not justified in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appel late authority has to be affirmed in this appeal. Per contra, the learned counsel appearing for the respondent-assessee submits that the decision rendered by the apex court in Kothari Products Ltd. [2000] 119 STC 553, meant that the State has no authority whatsoever to levy tax on gutka and in fact even prior to the relevant assessment years in question tax was not levied or collected for the said product and for the relevant year also no tax was leviable and accordingly did not collect any tax. However, on compulsion, on account of the action by the intelligence wing of the Department the respondent-assessee out of its profits had deposited the amount towards sales tax on gutka and pursuant to the decision of the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order under section 18AA of the Act, the Deputy Commissioner of Commercial Taxes has stated that: It is seen from the assessment records and the verification report that the assessee-concern has not collected sales tax separately in the sale bills issued, but at the same time it cannot be ruled out that the value of gutka shown in the sale bills is inclusive of admissible tax element resulting in indirect unjust enrichment. Therefore if this amount is not taken to Government under section 18AA of the KST Act, it would definitely amounts to unjust/undue enrichment as the purchaser/consumer has paid tax and the Government is not levying such tax. Before an order of forfeiture can be made under section 18AA of the Act, it is necessary t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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