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2019 (5) TMI 757

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..... ry of 6 months of the date of receipt of the application. High Court proceeded to consider the petition and pass the order which we have already adverted to. There was absolutely no whisper in the counter affidavit or additional affidavit filed by the appellants seeking to project the dispute that Coal purchased by the respondents was not the same good as Coke manufactured out of Coal and, therefore, on sale of Coke in an inter-state Sale, the respondent is not entitled to get refund of the tax paid on the intrastate purchase of Coal. The question which has been raised by the Appellant-State, was never raised and the writ petition filed by the respondent, was on the basis of the determination of the Refund under Section 15(b) of the Act. In such circumstances, no relief can be granted to the appellant - Appeal dismissed. - CIVIL APPEAL NO.4949 OF 2019 (@ S.L.P.(C) No.2404 of 2018), CIVIL APPEAL NO.4950 OF 2019 (@ S.L.P.(C) No.2407 of 2018) - Dated:- 10-5-2019 - CJI. RANJAN GOGOI, JUSTICE SANJAY KISHAN KAUL And JUSTICE K.M. JOSEPH For the Petitioner : Mr. Devashish Bharuka, AOR Mr. Ravi Bharuka, Adv. Ms. Sarvshree Singh, Adv. Mr. Justine George, Adv. Mr. Aditya Singala, Adv. Mr. Aks .....

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..... of the appellant that respondent has purchased coal by way of intra-state sale. What was sold by way of inter-state sale was not coal but coke. Therefore, the appellant is not entitled for reimbursement of the Sales Tax paid on coal under Section 15(b) as both goods are not same. 5. Article 286 of the Constitution of India, 1949, at the relevant time prior to its omission, read as follows: 286. Restrictions as to imposition of tax on the sale or purchase of goods. (1) *** (2) *** (3) Any law of a State shall, in so far as it imposes, or authorises the imposition of, (a) a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter State trade or commerce; or (b) a tax on the sale or purchase of goods, being a tax of the nature referred to in sub clause (b), sub clause (c) or sub clause (d) of clause 29 A of Article 366, be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify. 6. It is in view of Article 286(3)(b) of the Constitution that Parliament enacted the Act and purported to lay down the conditions and restrictions subject to which tax coul .....

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..... b-section (3) of section 5, the paddy and rice shall be treated as a single commodity; (d) each of the pulses referred to in clause (via) of section 14, whether whole or separated, and whether with or without husk, shall be treated as a single commodity for the purposes of levy of tax under that law. 9. The question arises as to whether such a right can be claimed when the goods sold under the inter- State are allegedly different from the goods which were subjected to tax under the intra-State transaction. This is despite the fact that both the goods which were purchased by way of intra-State transaction and the goods which are subject matter of the inter-State transaction are both declared goods under Section 14 of the Act. 10. Learned Counsel for the appellant drew our attention to the judgment in the case of Tvl. K.A.K. Anwar and Co. v. State of Tamil Nadu(1998) 1 SCC 437. 11. The question, however, arises as to whether we should go into the issue which has been raised by the appellants. The respondent - writ petitioner contends that the question as to whether Coal and Coke are same goods was not at all raised before the High Court. The issue before the High Court was something .....

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..... ining that instead of Appellate Authority remanding the matter back to the Assessing Officer, it should have itself decided the issue whether sales were actually inter-state and not intra-state sales. The same was dismissed. The Assessing Officer passed a revised order and the sales were determined as interstate sale. The liability was fixed at ₹ 26,97,266.34. A NIL demand was raised as the respondent had already paid the said amount. The respondent was entitled to be reimbursed the tax paid under the State Law on Coal and, therefore, the respondent had filed an application seeking refund. On the basis of the detailed adjudication by the Assistant Commissioner of Commercial Taxes, the amount refundable to the petitioner under Section 15 (b) of the Act was determined and an amount of ₹ 12,32,496 was determined. Thereupon, the respondent filed an application under statutory Form-XX as prescribed under Rule 35 of the Rules, 1983 but no steps were taken by the respondent for issuance of the Refund Payment Order. Despite repeated requests to process its application for refund and to issue the Refund Payment Order, no steps were taken. The respondent was entitled to claim ref .....

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