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TMI Blog2019 (9) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... t deposited by petitioner during the pendency of appellate proceedings for the Assessment Years 2005-06 to 2014-15 by holding that para 40 of the Apex Court judgment dated 18.03.2015 (Ext.P3) refers only to VAT paid by the petitioner to the State Government and has no bearing on the excess amount paid for the period referred to above. The petitioner, anin effect, anprays for the reliefs referred to above for refund of amount excessively paid by the petitioner to the State Government during the pendency of the appeal and also the writ petition before this Court. The circumstances stated below are by and large undisputed between the parties to the writ petition. The issue for consideration arises as an outcome of judgment in Civil Appeal No.1440 of 2010 dated 18.03.2015 (Ext.P3). To appreciate the circumstances leading to the final adjudication of Apex Court in Civil Appeal No.1440 of 2010 (Ext.P3) and the rival submissions, anthe following facts are adverted to. 3. The petitioner is engaged in production of two products, annamely 'Ujala Supreme' and 'Ujala Stiff and Shine' (for short 'products'). The petitioner is a dealer registered under the Kerala Value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt.P3 is excerpted: "38. From the aforesaid discussion, anit is clear as crystal that two goods/products have been held to be covered under the HSN Code 3905, anand HSN Code 3204.12.94 and hence, anthere can be no shadow of doubt that the said entries fall under entry numbers 155(8)(d) and 118(5) of the list "A" of Third Schedule of the 2003 Act covering industrial inputs and packaging materials, anbut that would not be material and relevant regard being had to the rules of interpretation which are applicable. The subject matter of the list will not fall under residuary entry 103 in SRO 82/2006 dated 21.01.2006, anif the goods in question fall in any entry of any of the schedule. That is what is conveyed by the language employed in Entry No.103. The said Entry, anas we find, andoes not stipulate or carves out any exception in respect of list "A" to the Third Schedule. That being the position, anonce goods fall under any of the HSN classification, anthat is, anthe goods/commodities that are included in list "A" to the Third Schedule, anentry 103, anwhich is residuary in nature, anwould not get attracted. 39. The submissions of learned counsel for the State that the decisions u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rate of 5%. In this circumstances the assessment order read as 1st above has been modified and the following orders are issued. ORDER NO.32080235512/2014-15 (April 2014) Dated 06.11.2015 Total turnover fixed as per original order : Rs. 25, 11, 53, 800.00 Output tax due on Rs. 17, 38, 04, [email protected]% : Rs. 2, 52, 01, 718.40 Output tax due on Rs. 53, 21, [email protected]% : Rs. 3, 85, 775.66 Output tax due on Rs. 7, 09, 67, 504.61 @5% : Rs. 35, 48, 375.23 Output tax due on Rs. 10, 60, [email protected]% : Rs. 26, 507.46 Total : Rs. 2, 91, 62, 376.75 Rounded to : Rs. 2, 91, 62, 377.00 Less: Input tax : Rs. 24, 98, 088.00 E-payment : Rs. 2, 66, 64, 290.00 : Rs. 2, 91, 62, 378.00 Balance tax due : Rs. 1.00 Paid as per Chalan No.729 dtd 15.05.2014 : Rs. 51, 11, 478.00 Excess : Rs. 51, 11, 478.00 The demand notice already issued is modified to the above extent. 6. The petitioner submitted Ext.P13 representation requesting for refund of amount deposited over and above the applicable VAT during the pendency of assessment proceedings for the years 2005-06 to 2012-13 or while the legal stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2008 is finally approved by the Supreme Court in Ext.P3 judgment. The consequence of adjudication in Ext.P3 judgment is that the levy, andemand or collection of tax at 12.5%, anon the products is ex facie illegal and contrary to Article 265 of the Constitution of India. He contends that paragraphs 40 and 41 of Ext.P3 judgment will have to be read together and appreciated by this Court while considering the request of petitioner for refund of excess amount paid by the petitioner. To wit he contends that in the case on hand the petitioner is under legal obligation to pay VAT at the rate of 4% and 5% and having paid applicable tax amount, anthe petitioner is not entitled for refund of amount paid at 4%/5%. The difference of tax paid, ani.e. 12.5% - 4%/5% is neither VAT nor can be treated as tax liability under any other head payable by the petitioner. The petitioner from the beginning has been contending that the petitioner is not passing on the difference of tax liability to customers and the difference of tax amount is paid by the petitioner, anincurred avoidable liability and the excess amount deposited is akin to deposit during the pendency of the proceedings before statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the peculiar facts of this case and the citations relied on by the petitioner. To buttress the said contention, anthat the Hon'ble Supreme Court never intended refund of amount upon deciding the classification of products and the applicable tax, anhas taken note of all the averments in this behalf made in I.A.Nos. 7 and 9 in Civil Appeal Nos.1440 of 2010 and rejected the request for clarification/modification. The applications in I.A. Nos. 7 and 9 refers to all circumstances which necessitate clarification of Ext.P3 judgment. Once Ext.P4 order is made by the Apex Court on the very same circumstances or interpretation, anthis Court ought not to revisit the very same issue and consider granting any of the prayers made by the petitioner. 11. He further contends that paragraph 40 deals with the amount of VAT paid to the State Government and what was paid at that point of time was Value Added Tax and even by plainly reading paragraph 40, anthe petitioner is not entitled to refund. He further contends that paragraph 41 of Ext.P3 judgment allowed Civil Appeal No.1440 of 2010 with the stipulation that none of the assessee/appellant could be entitled to refund. It means the restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment has accepted petitioner's contentions that classification of subject products under Residue Entry is illegal and untenable. The petitioner under compelling circumstances paid the excess or difference of VAT to respondents. The incidence of tax or liability thereof was not passed on to end customers. In other words, anthe petitioner has borne the additional tax burden which is completely avoidable but for the illegal order passed by R3 in 2006. Therefore, anthe respondents cannot and could not continue to retain the excess amount deposited or paid by the petitioner during the period when litigation was pending on applicable rate of tax. The respondents are legally bound to refund excess or difference of amount paid by petitioner. This Court is required to bear in mind that by applying the general principles of refund the case of petitioner could not be examined. The petitioner is laying its claim only by referring to Ext.P3 judgment with specific reference to the operative portion in paragraphs 40 and 41 already excerpted above. The issue is examined by appreciating Exhibits P3 and P4 and none else. 15. Yet another important aspect of the matter is that the petitioner an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 37, 05, 163 Total amount paid by the stockist and retailers towards alleged differential tax demand 3, 13, 80, 684 Grand Total 34, 29, 94, 080 10. It is submitted that this Hon'ble Court vide its judgment has set aside the demand of differential tax on the Applicant for the disputed period. Consequently, anthe retention of amount paid as deposit collected by the department and under the protest to the State Government, anwhich is not collected from the dealers, anwould be illegal and in violation of Article 265 of the Constitution of India. (emphasis added) 11. It is a settled law that the amounts deposited by a dealer from its own funds without passing the burden to the customers does not attract principles of unjust enrichment, anand hence cannot be forfeited to the Government. 12. In view of the aforesaid, anit is humbly prayed that Para 40 and 41 of the impugned judgment be suitably modified and appropriate directions be issued to the State Government for refund of all the amount recovered by the department in excess of explicable rate of VAT as decided by this Hon'ble Court to the Applicant and subsequent distributors and stockist. (emphasis added ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rections is not warranted. The word 'rejected' is understood to mean to refuse to believe, anaccept, anor consider (something). Upon due consideration of the undisputed circumstances the prayer for refund of difference of amount cannot be directed by this Court. 18. Ext.P1 is a communication addressed by respondent no.2 to petitioner. Ext.P1 merely adverts to the consequence of Ext.P3 and Ext.P4, anjudgment and order respectively. The second respondent intimates through Ext.P1 that the Department cannot refund the difference of amount paid. The petitioner could not point out an omission or infirmity by reading Ext.P1 except contending the entitlement of petitioner is dependent on appreciation of Exts.P3 and P4, anjudgment and order respectively. The understanding of Exts.P3 and P4 in any way than more than what the Apex Court has held in this behalf it virtually amounts to adding additional expression of the final adjudication by the Apex Court. 19. Under these circumstances, anthis Court in exercise of its jurisdiction under Article 226 of the Constitution ought not to revisit the very same circumstances and grant the prayers as made. The said course if is undertaken by this C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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