TaxTMI 
TaxTMI 
2019 (9) TMI 527
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....o respondents to refund the excess amount 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 ....
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....n the parties, anthe operative portion in Ext.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 submission....
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....ne" is to be classified under third schedule of KVAT Act and hence taxable at the 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 ....
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....d higher rate of tax from petitioner. From the inception the third respondent has been acting contrary to law. The view taken by the Tribunal in Tax Appeal No.272 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 ....
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....aim being raised by the petitioner/assessee in terms of Ext.P3 judgment. The principle of unjust enrichment etc on which the petitioner is relying on has no application 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....
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....iple laid down by the Apex Court in the decisions referred to above are not helpful to petitioner. 14. Precisely reiterated the case of petitioner is that Ext.P3 judgment 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 alr....
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....nder: Particulars Rs. Total amount paid by the applicant towards alleged differential amount 22, 79, 08, 233 Total amount paid by the distributors towards alleged differential amount demanded by authorities 8, 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 appropr....