TMI Blog2022 (5) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... tax paid items but all other residual items unless the goods were notified as tax free - There is merit in the contention of the Petitioner that pile carpets are also known as carpets. In common parlance, pile carpets are also understood as carpets. The carpets entered into the books of account of the Petitioner are in fact pile carpets . In the present case, the Petitioner having already paid to the seller, the 1st point sales tax, should not be asked to pay again sales tax on the last point of sale of the same commodity. Consequently, the question framed by the Court is answered in favour of the Assessee and against the Department by holding that carpets on which 1st point sales tax has already been paid by the Petitioner to the sell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order was passed on 6th February 2004 staying the demand after noting that the ACST, Puri Range, Bhubaneswar had by an interim order dated 25th March 1996 noted that the purchase of pile carpets by the Petitioner had already suffered 1st point sales tax. 3. During the pendency of these petitions, STREV No.41 of 2002 happened to be dismissed for default by an order dated 13th September, 2019. By a separate order passed today in CMAPL No.231 of 2022, that order has been recalled and STREV No.41 of 2002 has been restored to file. 4. The following common question of law is framed for consideration: Whether the carpets dealt with by the Petitioner on which 1st point sales tax has been paid to the selling dealer, are exempted from sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 31st July, 1998. The further appeal before the Tribunal was allowed in part by the impugned common order. 9. This Court has heard the submissions of Mr. Jagabandhu Sahoo, learned Senior Advocate for the Petitioner and Mr. S.S. Padhy, learned Additional Standing Counsel for the Opposite Party-Sales Tax Department. 10. Mr. Sahoo referred to the Serial No.23 of the list of 1st point goods as per the notification dated 22nd December 1989 issued by the Finance Department with effect from 1st January 1990 which reads 23. pile carpets . Serial No.23 on the list of taxable goods, which prescribes the rate of tax to various goods, irrespective of its status as to whether the goods belong to 1st point or last point as per notification da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. 14. Mr. S.S. Padhy, learned Additional Standing Counsel for the Opposite Party-Sales Tax Department on the other hand supported the impugned orders of the ACST and the Tribunal and submitted that they called for no interference. 15. The above submissions have been considered. The taxing provision in the OST Act is Section 5 (1) which prescribes the rate of tax. The point of levy of tax on different goods are in accordance with Section 8 of the OST Act. Therefore, the reference to entry 23 of the rate of tax for determining amenability to tax is not relevant. The schedule of taxable goods under List- C not only covers the goods notified as 1st point tax paid items but all other residual items unless the goods were notified as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the subject restitution . A person holding title to property is under an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. Basis of the law should be restitution where it is unreasonable and unjust for the defendant to retain the benefit which he has received. The theory of implied contract still persists in law. Restitution means the restoring of anything unlawfully taken from another. It is most frequently used in the common law for setting them in possession of land and tenements that has been unlawfully dispossessed of them. Looked at from another angle under Section 72 of the Indian Contract Act, a person to whom money has been paid, or anything delivered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction particularly when he has paid tax under a bona fide belief. 19. In the present case, the Petitioner having already paid to the seller, the 1st point sales tax, should not be asked to pay again sales tax on the last point of sale of the same commodity. Consequently, the question framed by the Court is answered in favour of the Assessee and against the Department by holding that carpets on which 1st point sales tax has already been paid by the Petitioner to the selling dealer would not again be amenable to sales tax at the last point of sale. The impugned orders of the Tribunal and the corresponding orders of the ACST and STO to the above extent are hereby set aside. 20. The revision petitions are allowed, but in the circums ..... X X X X Extracts X X X X X X X X Extracts X X X X
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