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2019 (9) TMI 527

..... excess amount paid for the subject assessment years in terms of the judgment in Ext.P3 and/or whether Ext.P4 order gives finality to conclusions recorded in Ext.P3 judgment? HELD THAT:- when the Hon’ble Supreme Court while passing orders in Ext.P4 stated that applications for modification/ clarification stand rejected, anit means that firstly there is no necessity for clarification and secondly the modification of Ext.P3 judgment by issuing necessary directions 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. This Court is required to bear in mind that by applying the general principles of refund the case of petitioner could not be examined. This 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 - Petition dismissed. - WP(C). No. 20748 OF 2017(P) - 3-9-2019 - MR S. V. BHATTI, J. For The PETITIONER : ADVS. SRI. SHAJI THOMAS, SRI. G. SHIVADAS AND SRI. H. KIRAN F .....

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..... . One of the distributors of petitioner, ani.e., anM/s. M.P.Agencies, ansought clarification on applicable rate of tax on the products. The clarificatory authority, anby exercising the power under Section 94 of the Act, anvide Order No.C7/02/07/CT dated 15.10.2007, anclarified that the products fall within the purview of Entry 103 of S.R.O. 82/2006, anthereby attracting tax of 12.5%. The petitioner, anaggrieved by the assessment order dated 08.08.2006, anpursued legal remedy available under the Act. The petitioner was unsuccessful before the Deputy Commissioner (Appeals) and filed appeal before the Kerala Value Added Tax Appellate Tribunal in T.A.(VAT) Nos.272 of 2008 and 314 of 2008. The Tribunal allowed the appeals filed by the petitioner. The State carried the matter to this Court in O.T.Rev. Nos.13 and 16 of 2009. It is contextual to refer to the filing of writ petition by M/s. M.P.Agencies against the clarification Order No.C7/02/07/CT dated 15.10.2007 in O.T.A. No.9 of 2007. A Division Bench of this Court, anvide judgment dated 06.04.2009 dismissed the appeal and the decision is reported in M/s.M.P.Agencies vs. State of Kerala (2010) 18 KTR 82 (Ker) . On 12.04.2011, anvide Ex .....

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..... n that after devolution with water the goods continue to remain classified under the same HSN number. This means that the goods remain in list A of the Third Schedule. It may be noted that the position would have been totally different had the goods in question been separately and specifically itemized in SRO number 82/2006 dated 21st January 2006. The goods which are specifically mentioned in any of the entries of the said SRO would be chargeable to tax @ 12.5%. But that is not the lis here, anfor the Revenue has included the goods in the residuary Entry 103 and the said entry, anby no stretch of reasoning, ancan be made applicable. 40. The High Court, anwe are disposed to think, anhas missed the issue in entirety and, antherefore, anwe are obliged to dislodge the impugned judgment and orders. However, anif any assessee-appellant has paid the amount of VAT to the State Government, anthey will not be entitled to get any refund of the said amount. 41. Consequently, anthe appeals are allowed and the judgment and orders are set aside with the stipulation that none of the assesseeappellant would be entitled to refund. (emphasis added) 5. The judgment in Ext.P3 determined the applicable .....

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..... pondents since are not moving in the matter, anthe present writ petition is filed for the reliefs referred to above. 8. The respondents contest the writ prayer in all fours. The first and foremost objection taken by the respondents is that the writ petition, anfor one or any of the reliefs prayed for is not maintainable. According to respondents, anall the issues, annamely, anapplicable rate of tax, anclassification of products, anVAT paid and that the petitioner is not entitled for refund, anare no more res integra in view of the judgment in Ext.P3 and order in Ext.P4. According to respondents, anthe petitioner is not entitled for refund of amount paid over and above 4%/5% during the pendency of appeal proceedings. The respondents state that the prayer of writ petitioner, anif is considered by this Court, anthe same amounts to expanding the scope and effect of Ext.P3 judgment. The principle of law applied by the Court in refund of indirect taxes paid in excess is not applicable to the facts and circumstances of the case. This Court ought not to assume jurisdiction to interpret the judgment (Ext.P3) and make out an executable decree in the fashion of a decree for refund of the amou .....

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..... 3) 1 SCC 333 and Gajraj Singh Vs. State of U.P. (2001) 5 SCC 762 firstly to bring home the principle on which refund is granted and when the claim for refund is refused. According to learned counsel the case on hand exactly fits to the decidendi laid down in the reported judgments and writ prayers are allowed accordingly. 10. Sri. C.E. Unnikrishnan, anthe learned Special Government Pleader at the outset submits that the present writ petition is nothing but a renewed effort to revive what is conclusively and finally decided by the Apex Court. The parties to the writ petition are not only bound by Ext.P3 judgment but also Ext.P4 order dated 18.01.2016. According to him, anthe judgment of the Supreme Court (Ext.P3) cannot and ought not to be interpreted in the manner of interpreting a Statute or Rule or Regulation made under the Statute. The petitioner by making the instant prayers before this Court is calling upon this Court to review or revisit the judgment in Ext.P3 and order in Ext.P4. It is canvassed that the respondents are not suggesting that this Court does not have jurisdiction to decide a claim for refund, anif the claim subsists or still left open by the judgment in Ext.P3 .....

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..... /appellant , an refund etc. The judgment in Ext.P3 and Ext.P4 order are binding on the parties and there is no scope for interpretation. The effort of petitioner is to shroud the judgment with ambiguity and again revive cause of action in this behalf. Firstly, anthere is no executable position in Ext.P3 judgment and this Court by reference to general principles of law on refund ought not to expand the scope of Ext.P3 judgment. Such procedure is impermissible. He prays for dismissing the writ petition. 12. I have perused the record and noted the rival contentions. The point for consideration is whether the petitioner is entitled for refund of excess amount paid for the subject assessment years in terms of the judgment in Ext.P3 and/or whether Ext.P4 order gives finality to conclusions recorded in Ext.P3 judgment. 13. The decisions relied on by the petitioner deal with cases where the request for refund is refused on the ground that the tax liability is already passed on to the end consumers etc. These decisions would have certainly guided this Court, anif judgment in Ext.P3 or order in Ext.P4 are to a different effect. This Court considers the effect of not only the outcome of lis b .....

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..... suance to recovery notices issued by the Commercial Tax Department and/or directions issued by High Court or appellate authorities. The said amounts have not been collected from the customers to whom the sale was effected. 8. In the subsequent assessment years of 2010-11 to 2014-15 (upto July 2014), anthe Applicant continued to charge VAT at the rate 4%/5% as applicable, anon the sale of the impugned products to its distributors & stockist. However, anthe alleged differential tax at the rate of 8.5%/9.5% was deposited under protest by the Applicant periodically without collecting the same from the distributors (subsequent dealers). As VAT was charged by the Applicant at the rate of 4%/5% on the invoice, anthe distributors (subsequent dealers) claimed input tax credit of said amount. The differential amounts paid were not passed on the customers since the Applicant treated the payments to be a deposit during the pendency of the matters before this Hon'ble Court. 9. To maintain uniformity of tax rate in the distribution network, anit was mutually agreed between the Applicant, andistributors, anstockiest and retailers that all dealers in the distribution chain would charge VAT .....

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..... rate of 12.5%. The classification issue is now decided by Ext.P3 judgment and applicable rate of tax on the products is 4%/5%. Therefore, anthe petitioner prayed for directions to respondents to issue refund of the difference amount received by respondents herein in excess of applicable rate of VAT. The prayer, anas already noted, anis rejected by Ext.P4 order dated 18.01.2016 and order reads thus: Applications for rectification/modification of Court's judgment dated 18.03.2015 stands rejected. 17. It is one way of looking at the controversy if it is presented for the first time by way of writ petition in this Court. It is another way to appreciate the claim for refund of petitioner if the very same issue is considered by the Apex Court and relief refused. The case on hand comes in the latter category. This Court is not hastening up to read the order in Ext.P4 and come to a conclusion that the prayer for refund of excess amount is unavailable, anbut with a view to appreciating the legal effect of ratio decidendi, anthe observations or directions of the Apex Court, anthis Court is justified in appreciating the attendant or totality of circumstances which were stated by the peti .....

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