TMI Blog2015 (4) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... tain ancillary or by-product arises which is sold and which is exempted from tax, that would not attract the provisions of Section 17 of the Act relating to partial rebate. Petitioners would be entitled for the relief sought for in the present writ petitions. - Decided in favor of appellant. - WRIT PETITION NOs.1095-1100/2015 WRIT PETITION NOs.412-417/2015(T-RES) - - - Dated:- 27-4-2015 - Arvind Kumar, J. Keshavamurthy T.N. for the dealers. T.K. Vedmurthy, High Court Government Pleader, for the respondents ORDER Petitioners are seeking for refund of ₹ 81,31,623/- (in W.P.1095-1100/2015) and Rs. 77,02,584/- (in W.P.412-417/2015) being the input tax rebate to be due to the petitioners for the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled. Applications filed by petitioners for refund resulted in endorsement being issued to the respective petitioners as per Annexures-A dated 23.12.2014 and 24.12.2014 respectively whereunder first respondent has intimated the petitioners that on account of steps being taken for challenging the Judgment rendered by Division Bench in the case of M/s.M.K.Agro Tech (Private) Limited, Mandya District Vs State of Karnataka by filing Special Leave Petition(SLP) before Hon ble Apex Court applications for refund would be considered after receipt of further orders or on outcome of the proposed Special Leave Petition that would be filed by State. As such respondents have not processed the applications for refund of input tax claimed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave sought for the prayer for refund of excess input tax amount paid by the petitioners. 5. Per contra, Sri.T.K.Vedamurthy, learned HCGP appearing for respondent-State would contend that under section 47 of the Act it is the persons who have paid the input tax would be entitled and as such the Doctrine of Unjust Enrichment would apply and petitioners would not be entitled for refund of input tax. 6. In reply Sri.T.N.Keshava Murthy, learned counsel appearing for petitioners submits that there is no dispute that input tax has been paid by petitioner and sub-section(5) of Section 10 itself provides for refund of such excess input tax payable to the dealer which had been paid by the dealer and as such Doctrine of Unjust Enric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of petitioners for refund of excess input tax or keep the applications filed by the petitioners in abeyance on the said ground. 9. Infact the Division Bench has clearly held in M/s.M.K.Agro Tech (Private) Limited to the effect that where a dealer is in the business of manufacture of only one product namely oil which is liable to tax and merely because in the process of manufacture of oil certain ancillary or by-product arises which is sold and which is exempted from tax, that would not attract the provisions of Section 17 of the Act relating to partial rebate. It has been held as under: 11. In this case it is not in dispute that the assessee is in the business of sale and manufacture of sunflower oil from sunflower oil cake had ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing into consideration the sale of de-oiled cake which is an exempted goods. In that view of the matter, the authorities have not properly appreciated the said statutory provisions. The legislative intent is defeated in denying the benefit of input tax deduction relying on Section 11(a)(1) read with Section 17 of the Act. The impugned order is unsustainable. 10. In that view of the matter this court is of the considered view that petitioners would be entitled for the relief sought for in the present writ petitions. Hence, following: ORDER 1. Writ petitions are hereby allowed. 2. A direction is issued to first respondent to process the applications of petitioners for refund Annexure-B and refund the amounts claimed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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