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TMI Blog2011 (7) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority passed an order dated December 30, 1992, forfeiting Rs. 31,04,742, under section 30B of the Act, towards excess collection of tax. Aggrieved thereby the petitioner filed an appeal under section 19 of the APGST Act before the Appellate Deputy Commissioner who, by his order dated July 15, 1993, dismissed the appeal. Aggrieved thereby the petitioner preferred a second appeal, in T. A. No. 17 of 1994, and the STAT, by its order dated December 22, 1998, allowed the appeal and set aside the order of forfeiture of Rs. 31,04,742 both on the ground that it was barred by limitation as prescribed under section 30C, and as no separate order of forfeiture was passed by the assessing authority. Sri G. Narendra Chetty, learned counsel for the petitioner, would contend that, since the order of the STAT has attained finality, the respondent had no authority to retain the said amount, and was bound to refund it to the petitioner without their having to submit an application in this regard. Reference is made by the learned counsel to section 33F of the Act and rule 43 of the APGST Rules to contend that the order of the STAT should be given effect to by the assessing authority, and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im under the provisions of the Act. Section 33BB relates to non-refund of tax in certain cases and, 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. The legislative mandate, under section 33BB of the APGST Act, is that refund is not automatic on the finding recorded by a judicial body that tax was illegally collected from the assessee, but the assessee is required to establish that he had not already passed on the liability to some other person (purchaser). In substance, the provision is based on the well-established legal principle, in the realm of indirect taxes, that an assessee shall not unduly enrich himself by taking advantage of an illegality committed by the officers of the State. (State of A.P. v. Jindal Strips Limited (previously Jindal Ferro Alloys Limited), Jindalnagar, Kothavalsa) [2006] 10 VST 777 (AP) ; [2006] 43 APSTJ 1. Section 30C of the APGST Act relates to imposition of penalty for contravening certain provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... III, and shall be verified in the manner specified therein. As noted hereinabove, section 30B(2) of the APGST Act prohibits a dealer from collecting any amount by way of tax in excess of the tax payable by him on the sales made under the provisions of the Act. It is not in dispute that the petitioner has collected excess tax from their customers on the sale of packing material like gunny bags, H. D. P. E. bags, etc., at the rate applicable to its contents, i.e., cement even though the rate of tax on such packing material was lower than that of cement. The justification put forth by the petitioner for seeking refund is that, for contravention of the provisions of section 30B of the Act, section 30C prescribes penalty and forfeiture of the sum so collected by the dealer ; section 30C(2) prohibits any order of forfeiture being made after expiry of three years from the date of collection ; and, as the STAT had set aside the forfeiture order of the assessing authority, the respondents were bound to refund the tax paid by the petitioner even if the said amount represented excess tax collections by them over and above what is stipulated under the Act. In Hyderabad Asbestos Cement Produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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. The State represents the people of the country. No one can speak of the people being unjustly enriched. Article 265 of the Constitution has to be construed in the light of the goal and the ideals set out in the preamble to the Constitution, and in articles 38 and 39 thereof. The concept of economic justice demands that, in the case of indirect taxes, the tax collected without authority of law shall not be refunded to the petitioner unless he alleges and establishes that he has not passed on the tax burden to a third party, and that he has himself borne the burden of the said tax. Where the petitioner has suffered no real loss or prejudice, having passed on the burden of tax to another person, it would be unjust to allow 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 the administration of the affairs of the State. (Mafatlal Industries Ltd. [1998] 111 STC 467 (SC)) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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