TMI Blog2016 (4) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... man, JJ. For the Appellant : Sri M Gopikrishnan Nambiar, Adv, Sri P Gopinath, Sri P Benny Thomas, Sri K John Mathai, Adv For the Respondent : Dr Sebastian Chempappilly, Spl Govt. Pleader JUDGMENT Anu Sivaraman, J. This appeal is preferred by the unsuccessful writ petitioner/assessee against the judgment of the learned single Judge dismissing W.P(C).No.17385 of 2008. The writ petition was filed challenging Exhibits P13 and P15 orders issued by the Commercial Tax Officer refusing refund of the tax already paid under the Kerala Tax on Luxuries Act, 1976 (for short, the Act, 1976'). The appellant is a firm which is a registered dealer in tobacco products. It had preferred O.P.No. 2190 of 1995 challenging the liability for payment of luxury tax. An interim order was issued in that case on 10.2.1995 refusing to stay the operation of Section 4A of the Act, 1976, but directing the petitioner to file returns. So far as the payment of tax contemplated under Section 5(3) of the Act, 1976 is concerned, the petitioner was directed to furnish bank guarantee to the satisfaction of the assessing authority on or before 15th of every month in relation to the tax payable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was the contention of the Revenue that the Supreme Court had in the Godfrey's case (supra) relying on an earlier judgment in Somaiya Organics (India) Ltd. v. State of UP [(2001) 5 SCC 519)] held that even in cases where levy of tax or duty was found to be invalid prospectively, tax already collected would not be refundable. It was also held in Godfrey's case (supra) that if the assessees have collected any amount towards luxury tax from consumers/customers after obtaining interim orders, they are liable to pay the said amounts to the respective State Governments. 3. The appellant preferred Exhibit P14 reply pointing out that the finding regarding non refund of the duty already collected was entered in the Somaiya Organics' case (supra) only in view of the fact that the Supreme Court had exercised its jurisdiction under Article 142 of the Constitution of India to strike down the offending provision only with prospective effect and therefore, there was no question of applying that principle to the instant case. It was pointed out that in view of the interim orders rendered in O.P. 2190 of 1955, the appellant need have only furnished a bank guarantee and that amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay the amounts due as tax in cash in lieu of the bank guarantee which was to be furnished by the appellant. The respondents had specifically undertaken that the amounts so paid in cash would be refunded in case the appellant was successful in the litigation. The litigation ultimately ended in the quashing of Section 4A of the Kerala Tax on Luxuries Act, 1976. The appellant, who was to have furnished only bank guarantees in terms of the interim order available in this case, had paid amounts in cash on the specific understanding that such amounts would be refunded if the appellant was successful in the litigation. In the above view of the matter, it is urged by the learned counsel that the refusal to refund the amounts so collected from the appellant would be a fraud on them by the statutory authorities and would also amount to a confiscatory act on their part which is not supported by any due process of law. It is also urged by the learned counsel that the appellant had furnished all available materials before the respondents to prove that they had made no collection of luxury tax from their customers and that the amount paid by them in lieu of the bank guarantee was made out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibits P1 to P5 communications were issued requiring the appellant to make payments on the specific undertaking that such amounts would be refunded if the appellant was successful in the litigation. We have gone through the judgment referred to by the learned single Judge and the Commercial Tax Officer to deny the benefit of refund to the appellant. The relevant findings in the judgment of the Apex Court in Somaiya Organics' case (supra) are as follows: 35. Furthermore in view of the enunciation of the law by this Court in Oswal Agro Mills Ltd. case a bank guarantee which is furnished cannot be regarded as payment of excise levy which the Government is entitled to retain. The furnishing of a bank guarantee is ordered normally in order to ensure collection of dues. Where, however, the State, as in the present case, has been held not to be entitled to collect or realise vend fee after 25-10-1989 it cannot be allowed to invoke the bank guarantee and realise the amount of vend fee. What cannot be done directly cannot be done indirectly either. Furnishing of bank guarantee is only a promise by the bank to pay to the beneficiary the amount under certain circumstances contained i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dfrey's case (supra) also this finding of the Apex Court had been adverted to hold that no refund of tax already paid need be made. It was further pointed out that in case the tax paid is the tax collected from end users or customers, the dealer would not be entitled to refund. In the instant case, the appellant had a specific case that no amount had been collected as tax from the customers. The appellant had produced certificates from their auditors, which was the only available material to prove their contention. The appellant contends that the rejection of the appellants claim for refund for the reason that he had produced only a certificate of the Chartered Accountant to prove that the amount claimed as refund had not been passed on to its customers by the petitioner is illegal and is agaisnt the decision of this Court reported in Cadbury India Ltd. v. Union of India [(2015 (315) E.L.T 488 (Ker.)]. 11. In any view of the matter, the appellant contends that since the appellant was only enabled by the provisions to collect tax from the customers, there was no mandate to do so and the appellant had, as a matter of fact, not collected such tax. In support of this contention, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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