TaxTMI 
TaxTMI 
2021 (3) TMI 275
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....ication is for placing on record rejoinder by way of affidavit of the petitioner to the reply filed on behalf of respondents No.1 to 3. Application is allowed, as prayed for. Rejoinder is taken on record. CM-1743-2021 Application is allowed. The affidavit on behalf of respondents No.4 and 5 is taken on record, in terms of order dated 12.01.2021 passed by this Court. Main Case The present writ petition is directed against the order dated 02.07.2020 (P-1) passed by Deputy Commissioner (Excise & Taxation), Panipat, Haryana (respondent No.3 herein), whereby representation dated 12.03.2020 (P-11) of the petitioner for refund of excess tax borne by it was rejected. Brief facts of the case are that the Petitioner is a Company eng....
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....e despite the fact that the above-said commodities are governed by the respective State Value Added Tax laws. In absence of C-form, the petitioner had to purchase HSD after payment of a higher rate of tax during the period October 2017 to March 2018. On account of this, the petitioner paid an excess tax amounting to Rs. 93,72,244/-. To seek refund of the aforesaid amount, the Petitioner/ Company approached the Rajasthan High Court by way of a writ petition bearing CWP No.5475 of 2018. The said writ petition was allowed by the Rajasthan High Court vide order dated 28.09.2018 (P-5) by placing reliance on a judgment of its own Court rendered in CWP No.5506 of 2018 (Hindustan Zinc Limited Vs The State of Rajasthan and others). Feeling aggrie....
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.... ground that the excess tax can be refunded only to those from whom it was charged as per the provisions of Haryana Value Added Tax, 2003 (for short 'HVAT Act'). Hence, the present writ petition. Learned counsel for the petitioner submits that respondent No.3 has committed a serious error by applying the refund provisions of the HVAT Act to the present transaction which is admittedly governed by the CST Act. He further submits that in view of provisions of sub-section 5 to Section 20 of the HVAT Act, any aggrieved person can seek refund by establishing the case for refund. To support his contentions, she places reliance on a judgment of this Court delivered in Carpo Power Limited Vs. State of Haryana and others, 2018 (2) GSTL 248 as w....
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.... any authority under this Act or by any court unless he refunds such amount to those from whom it was charged, and where charged, and where from a VAT dealer, the input tax shall be duly adjusted. XXX XXX XXX XXX XXX XXX XXX (7) Before any refund is given to any person under this Act it shall be first adjusted with any amount due from him under this Act or the Central Act for any period and the balance, if any, only shall be refunded to him." It is not disputed that the Petitioner / Company purchased high speed diesel from the Indian Oil Corporation for Rs. 6,15,78,478.60/- during the period from October 2017 to March 2018 on full rate of CST, i.e. 17.22% amounting to Rs. 1,06,03,813.99/- as the Commercial Tax Department, Raj....
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....ned counsel for the petitioner is that in view of provisions of Section 20 (5) of the HVAT Act, any aggrieved person can seek refund by establishing the case for refund. It is not disputed that the Petitioner / Company has furnished proof of bearing the burden of the excess tax to the respondent authorities. The stand taken by the respondent authorities while rejecting the representation of the Petitioner/ Company is that the excess tax can be refunded only to those from whom it was charged as per as per the Section 20 (1) and (7) of HVAT Act. A similar controversy came up for consideration before this Court in the case of Carpo Power Limited (supra) as also before Gujarat High Court in J.K. Cement's case (supra), wherein a number....
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....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 them from Reliance Industries Limited in the course of inter-State trade for use in mining activities and they are, therefore, the ultimate consumers thereof and hence, the question of passing on the tax burden to anyone would not arise. Consequently, the question of unjust enrichment would also not arise." From the reading of the above-said judgment, it can be safely concluded that the HSD has been purchased by the Petitioner/ Company from Indian Oil Corporation in the course of inter-State trade for use in mining activities and therefore, the question of passing....