TaxTMI 
TaxTMI 
2022 (2) TMI 1166
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.... the pendency of the present writ petition, the Respondents be directed to deposit the pending refund/rebate amount of INR 2,30,11,188/- along with applicable interest in a time-bound manner of two to four weeks as the Hon'ble Court may deem fit; and/or (d) for costs of this Petition and orders thereon; (e) for such further and other reliefs, as this Hon'ble Court may deem fit and proper in the nature and circumstances of the case." 2. We have heard Mr. Uday N. Choksi, the learned counsel appearing for the writ applicant and Mr. Utkarsh Sharma, the learned AGP appearing for the State respondents. 3. It appears from the materials on record that the writ applicant is seeking direction to the respondents to forthwith grant the refund of the amount of Rs. 2,30,11,188/- collected from the writ applicant by the seller of natural gas and deposited with the respondent authorities under the Central Sales Tax Act, 1956 (for short 'the CST Act'). 4. It appears that despite the fact that natural gas 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 natural....
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....an High Court has specifically directed the concerned authorities to refund the excess tax within twelve weeks of the refund claim. Reference was made to section 11B of the Central Excise Act, 1944 and more particularly to clause (e) of subsection (2) thereof, which provides that the amount of duty of excise and interest, if any, shall instead of being credited to the fund be paid to the applicant if such amount is relatable to the duty of excise and interest, if any, paid on such duty borne by the buyer, if he has not passed on the incidence of such duty and interest, if any, paid on such duty to any other person. 11.1 Reference was made to the decision of the Supreme Court in State of M.P. v. Vyankatlal & Another, (1985)2 SCC 544, wherein it has been held thus: "14. The principles laid down in the aforesaid cases were based on the specific provisions in those Acts but the same principles can safely be applied to the facts of the present case inasmuch as in the present case also the respondents had not to pay the amount from their coffers. The burden of paying the amount in question was transferred by the respondents to the purchasers and, therefore, they were no....
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....f the GVAT Act, which deals with refund of excess payment and says that subject to the other provisions of the Act and the rules, the Commissioner may refund to a person the amount of tax, penalty and interest, if any, paid by such person in excess of the amount due from him, it was submitted that the sub-section specifically says "person" and does not use the expression "dealer". It was submitted that this is not a refund arising in an ordinary case and that the petitioners were forced to pay the tax on account of the action of the authorities at Rajasthan which was held to be illegal. 11.4 Reliance was placed upon the case of the Supreme Court in the case of Indian Aluminium Company Limited v. Thane Municipal Corporation, 1991 (55) ELT 454 (SC), wherein the court has held thus:- "8. In any event the petitioner Company cannot claim concession at this distance as a matter of right. In Orissa Cement Ltd. v. State of Orissa & Ors, A I R 1991 SC 1676, it was observed thus: "We are inclined to accept the view urged on behalf of the State that a finding regarding the invalidity of a levy need not automatically result in a direction for a refund of all collecti....
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....y the petitioner cannot be asked to bear the burden thereof. Strangely, the service tax department holds that if the refund is granted, the petitioner would retain it and therefore benefit unjustly, and therefore, does not granted refund, citing it a case of unjust enrichment. The CPWD holds a belief that whatever be the reason for the petitioner not being able to retrieve such amount from the service tax department, the CPWD must get it back; even if it is from the petitioner personally. In the process, if we allow this situation to prevail, the petitioner would end up losing the service tax component from his profit which in the first place was not the liability of the petitioner. Instead of a case of unjust enrichment, it would be a case of unjust impoverishment. 16.The respondent no. 4 was also not correct in his approach while dealing with the petitioner's refund application. In the communication dated 7th November 2016, the petitioner had made it abundantly clear that the service tax refund is being claimed for and on behalf of the CPWD and the petitioner would have no objection, if the amount is directly paid to the said organization. Ignoring such representatio....
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....re not disputing the fact that the amount collected towards tax in the absence of C form declarations is required to be refunded if the C form declarations are furnished; however, such refund can be granted to the seller - Reliance Industries Limited and not to the petitioners. It was submitted that the transactions in question being interstate transactions, the Commercial Tax Department of Rajasthan was required to issue C forms to the petitioners, which were then required to be forwarded to Reliance Industries Limited, but as the Rajasthan Commercial Tax Department refused to grant C forms to the petitioners, they were liable to pay tax @ 20 % which was deposited with the Gujarat Commercial Tax Department. It was submitted that since the assessment proceedings qua Reliance Industries Limited are still pending for the assessment years in question, the respondent authorities are still to process the application for grant of refund. It was further submitted that the refund shall be paid to Reliance Industries Limited which in turn shall forward the amount to the petitioners. However, the respondent authorities would not be in a position to directly grant refund to the petitioners as....
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....jasthan have issued C form declarations in respect of the transactions in question. The respondent authorities do not dispute that 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. 15. In the opinion of this court, while adopting the above stand, the respondents have failed to take into consideration the fact that insofar as Reliance Industries Limited is concerned, it has already collected the tax from the petitioners, and hence, if Reliance Industries Limited seeks refund of the amount against the C form declarations, it would not be entitled to such refund as such claim would be hit by the principles of unjust enrichment. As held by the Supreme Court in State of Madhya Pradesh v. Vyankatlal (supra), only the persons on whom lay the ultimate burden to pay the amount would be entitled to get a refund of the same. The petitione....
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....wing details of purchases, tax charged and submission of 'C' forms against such purchases as well as copy of sample invoice, etc. Thus, the petitioners had duly complied with the direction issued by the Rajasthan High Court and in case the respondents required the petitioners to furnish any other details, it was always open for them to call upon the petitioners to furnish the same. However, the respondent authorities have taken a stand that since it is Reliance Industries Limited which has deposited the tax, such refund application has to be made by it and upon refund being made to Reliance Industries Limited, it can pay the same to the petitioner. However, as noted earlier, Reliance Industries Limited cannot make an application for refund inasmuch as such claim would be barred by the principle of unjust enrichment. Moreover, as stated by the respondents, in the case of Reliance Industries Limited, the refund claim would be processed during the course of its assessment for the period in question, which may take years together and in the meanwhile the petitioners would be deprived of such amount. Moreover, it may be that while processing the refund claim during the course of Relianc....