TMI Blog2020 (3) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... at against the C form declarations, the tax collected from the petitioners and deposited by Reliance Industries Limited is required to be refunded. The sole refrain of the respondent authorities is that such refund can be made to the seller Reliance Industries Limited after its assessment for the period in question is concluded and not to the petitioners who are not registered as dealers in Gujarat. In the present case, in the absence of C forms having been issued by the Rajasthan authorities, the respondent authorities have collected excess tax from the seller-Reliance Industries Limited, who in turn has collected the same from the petitioners - once the Rajasthan authorities issue C forms against the sales made by Reliance Industries Limited to the petitioners and the petitioners produce the requisite documents/forms before the respondent authorities, the respondent authorities are required to process such claim within twelve weeks of the same being made in writing by the petitioners. Unjust enrichment - HELD THAT:- In case of the petitioners, it is an admitted position that the HSD has been purchased by them from Reliance Industries Limited in the course of inter-State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l rate of tax from the seller. 5. The goods and services tax regime was introduced in the country with effect from 1.7.2017, which encompassed all goods except six commodities viz. crude oil, petrol, diesel, aviation turbine fuel, natural gas and alcoholic liquor. These six commodities continued to be governed by the respective State value added tax laws for the transactions within the State as well as the CST Act insofar as the interstate transactions were concerned. 6. It appears that despite the fact that diesel continued to come within the ambit of the CST Act, after 1.7.2017, the authorities in the State of Rajasthan refused to issue C form declarations of purchase of diesel at concessional rate on the ground that after introduction of the GST regime, the registration certificates of the dealers such as the petitioner, automatically stood cancelled and they were not eligible for making purchases of diesel against C form declarations. In view of such stand taken by the authorities of the State of Rajasthan, the seller Reliance Industries Limited started raising invoice charging full tax @ 20% on sales of diesel to the petitioners. Since the authorities of the State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addressed a letter to its seller on 1.3.2019, informing it about the order passed in its case and requested for necessary action and was informed by the seller that it had already informed the jurisdictional authority regarding the decision of the Rajasthan High Court requiring refund of excess tax collected by the concerned authority and, therefore, the petitioner may approach the concerned authority for refund in accordance with the direction of the Rajasthan High Court. 10. Thereafter, the petitioner addressed a letter dated 19.4.2019 to the jurisdictional authority under the CST Act in the State of Gujarat requesting for refund of excess tax totaling to ₹ 2,12,09,162/- collected from the petitioner in accordance with directions given by the Rajasthan High Court. [The petitioner in Special Civil Application No.16288 of 2019 addressed a letter dated 31.8.2019 to the jurisdictional authority of the seller under the CST Act in the State of Gujarat requesting for refund of excess tax totalling to ₹ 1,97,32,644/-]. The petitioners also furnished details of the refund claim. However, despite repeated oral inquiries, the respondent authorities have not responded to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt towards the Fund. Doing so would virtually amount to allow the respondents unjust enrichment. It was submitted that there is no bar that the petitioners cannot be granted the refund though the petitioners are the buyers. It was submitted that just like no statutory provisions are required for applying the principle of unjust enrichment, correspondingly no provision is required for refund to the person who has borne the tax. It was submitted that the Rajasthan High Court having given a direction to refund the amount to the petitioners, the respondent authorities are duty bound to comply with the same. 11.2 Reference was also made to the decision of the Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India, 111 STC 467 (SC), wherein the court has held thus: 99.(xii) Section 11-B does provide for the purchaser making the claim for refund provided he is able to establish that he has not passed on the burden to another person. It, therefore, cannot be said that section 11-B is a device to retain the illegally collected taxes by the State. This is equally true to section 27 of the Customs Act, 1962. It was submitted that therefore, if the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the consumers. Therefore there is no justification to claim the same at this distance of time and the court in its discretion can reject the same. For the above reasons, this Special Leave Petition is dismissed with costs. It was submitted that this court which is exercising writ jurisdiction may mould the relief in an appropriate manner, but should ensure that the order passed by the Rajasthan High Court is duly complied with. 11.5 Reference was also made to the decision of this High Court in the case of Ranjeet Singh Choudhary v. Union of India, [2019]60 GSTR 511 (Guj), wherein the court held thus: 14. In the present case, it was therefore upto the CPWD to apply for refund of the service tax which was paid as per the law prevailing at the relevant time, but which became refundable on account of retrospective amendment in the law. The CPWD instead of applying for refund, itself insisted that the petitioner must apply and when the petitioner's application for refund was rejected by the Assistant Commissioner of Service Tax, Ajmer, CPWD found a novel way to recover the same from the petitioner by utilizing the petitioner's security deposit, unpaid amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the seller viz. Reliance Industries Limited has informed the respondents that the buyers would claim the refund. 11.6 Reliance was also placed upon the decision of the Madhya Pradesh High Court in the case of Hotline CPT Ltd. v. State of M.P. Ors., [2013]61 VST 367 (MP). In the facts of the said case, the petitioner had paid tax to the respondents No.5 and 6 on account of purchase of diesel for its in-house consumption and respondents No.5 and 6 had paid the said tax to the State Government. The tax was paid in accordance with the instructions issued by the Commercial Tax Department to respondents No.5 and 6. The court held that in such circumstances, the petitioner was entitled to refund of the amount from the State and accordingly, allowed the petition and directed the respondent authorities to refund the amount to the petitioner within the period stipulated therein. It was, accordingly, urged that it is always permissible for this court to direct the respondents to make the payment to the petitioners. 11.7 It was submitted that in the present case, the enactment concerned is the CST Act and the petitioners are dealers under the CST Act, but registered in Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion to the provisions of subsection (3) of section 31 of the GVAT Act, to submit that the seller Reliance Industries Limited would not be able to claim refund as it has not borne the incidence of tax. It was submitted that there is no statutory bar against giving the refund to the purchaser and that the stand adopted by the respondents flies on the face of the decision of the Rajasthan High Court. It was submitted that Reliance Industries Limited cannot claim refund as the burden has already been passed on to the petitioners; whereas, the petitioners have been disputing the liability to pay tax right from the inception. It was submitted that the petitioners being the users of the goods, the question of passing the duty burden does not arise and that in the light of the decision of the Rajasthan High Court, the court may issue appropriate directions to the respondent authorities to refund the amount to the petitioners. 14. In the backdrop of the facts and contentions noted hereinabove, it is an undisputed position that the petitioners have borne the burden of tax as the CST authorities at Rajasthan had refused to issue C forms after the coming into force of the GST regime. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further directed the concerned authorities to process such claim within twelve weeks of the same being made by the petitioners in writing and the petitioners furnishing the requisite documents/forms. 17. In the present case, in the absence of C forms having been issued by the Rajasthan authorities, the respondent authorities have collected excess tax from the seller - Reliance Industries Limited, who in turn has collected the same from the petitioners. Therefore, in terms of the above order passed by the Rajasthan High Court, once the Rajasthan authorities issue C forms against the sales made by Reliance Industries Limited to the petitioners and the petitioners produce the requisite documents/forms before the respondent authorities, the respondent authorities are required to process such claim within twelve weeks of the same being made in writing by the petitioners. 18. Pursuant to the above order passed by the Rajasthan High Court, the petitioner in Special Civil Application No.15333 of 2019 has made an application dated 19.4.2019 to the second respondent for refund of ₹ 2,12,09,162/- charged by Reliance Industries Limited. Along with the application, the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were duty bound to process such claim within a period of twelve weeks from the date of such application. The stand adopted by the respondents that the refund can be made to only to Reliance Industries Limited flies in the face of the order passed by the Rajasthan High Court as well as the above-referred decisions on which reliance has been placed by the learned advocate for the petitioners and is nothing but a purely hyper technical stand adopted by them. Once Reliance Industries Limited has, in clear terms, written to the authorities that various buyers who have purchased HSD in the course of inter-state trade for use in mining activities will be approaching their office for refund of the differential tax amount and has enclosed therewith Customer-wise details of inter-state sales made to buyers in Rajasthan at full rate, it is evident that Reliance Industries Limited is not disputing the fact that it is the petitioners who are entitled to claim the refund. Under the circumstances, the respondent authorities are not justified in not processing the refund claims of the petitioners. 20. In case of the petitioners, it is an admitted position that the HSD has been purchased by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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