TaxTMI 
TaxTMI 
2024 (7) TMI 375
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....mpany engaged in providing, processing and packaging the solutions. The petitioner is purchasing natural gas from the Bharat Petroleum Corporation Limited during the course of its business. After inception of GST regime with effect from 01.07.2017, there was confusion in the trade as well as the Department as regards continuity of registration of dealers under the CST Act and allowability of interstate supply of petroleum products at concessional rate under the CST Act when they were to be used in manufacture of goods Covered under GST regime. C-Form declaration were not being issued by the sales-tax department across the country on the ground that the petroleum products were not to be used for manufacture of goods. The Hon'ble Supreme Court dismissed the Special Leave Petition filed by the State on 13.08.2018 confirming the order passed by the Punjab and Haryana High Court in case of Carpo Power Limited versus State of Haryana reported in (2018) 53 GSTR 24 (P&H) wherein, it is held that purchase against C-Form declaration was permissible even after introduction of the GST regime. 4.2. A circular/office memorandum dated 01.11.2018 was issued by the Central Government to Comm....
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....petitioner. 4.5. Because of the legal ambiguity during the relevant period, the commercial tax department of the State of Maharashtra cancelled the registration of the petitioner under the CST Act without giving any intimation or opportunity to the petitioner to clarify its stand, Due to this, the petitioner was unable to obtain C-Form declarations in time from the commercial tax department of the State of Maharashtra. 4.6. As the petitioner was not able to immediately provide C-Form declarations to the seller, the seller encashed bank guarantee provided by the petitioner for differential tax under the CST Act for the period from 16.03.2018 to 31.03.2019. 4.7. In so far as the period from 01.07.2017 till 15.03.2018 is concerned, the seller had charged full rate of tax in the invoice itself which the petitioner was made to pay to the seller which was further deposited in the Government treasury. 4.8. Thereafter the registration of the petitioner under the CST Act was restored by the Maharashtra commercial tax department in the year 2022 pursuant to order passed in this regard by the appellate authority which was based on the order of Hon'ble Supreme Court in the case of ....
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....18 and 2018-19. 5.1. Learned Advocate Mr. Uchit Sheth for the petitioner submitted that in spite of repeated request made by the petitioner before the second respondent authority-Deputy Commissioner of State Tax, refund in favour of the petitioner was not granted though the facts of the petitioner are covered by the decision of this Court in case of J.K. Cement Limited (Supra) which has been confirmed by the Hon'ble Supreme Court. It was therefore submitted that refusing to refund the amount of excess tax collected and deposited by the petitioner even though the C-Form declaration have been duly furnished, is contrary to the above decisions. 5.2. It was submitted that though the petitioner was legally entitled to purchase goods as concessional rate of tax against C-Form declarations, the petitioner was forced to make purchases by paying CST at the rate of 15% instead of 2% in view of the legal ambiguity during the interregnum period and as result of charging of such tax in invoices for the period till 16.03.2018 and thereafter, invocation of Bank Guarantee for the period from 16.03.2018 to 31.03.2019, the tax deposited by the seller with the respondents WET authorities, i....
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....ed 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 petitioners having borne the ultimate burden in this case, it is only they who would be entitled to refund of the same. 16. Besides the Rajasthan High Court in the petitioners' own case has held that the authorities at Rajasthan were liable to issue 'C' for....
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....uired 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 Reliance Industries Limited's assessment, the respondents may even adjust the refund amount against its dues. Thus, the stand of the respondents that Reliance Industries Limited should file the refund claim and then pay the amount so refunded to the petition....
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....ld not be entitled to claim any such refund. Rule is made absolute accordingly, with no order as to costs. 8. The aforesaid decision of this Court was upheld by the Hon'ble Supreme Court by dismissing the SLP vide order dated 10.02.2021 as under : "1. The order of the High Court which is impugned in the Special Leave Petitions indicates the factual position that: (i) The respondent was denied a C-form in respect of an inter-State sale as a result of which a higher rate of tax was charged; (ii) The respondent moved the Rajasthan High Court in a writ petition in which interim directions were initially issued on 20 February 2018 and subsequently on 18 May 2018 it was held that the refusal to issue a C-form was contrary to law; (iii) The High Court upheld the entitlement of the respondent, in consequence, to seek a refund; and (iv) The State, as a matter of fact, has not disputed the refund which is due and payable. 2. Ms Aastha Mehta, learned counsel appearing on behalf of the petitioners submits that the High Court has not considered the provisions of Section 36 of the Gujarat VAT Act 2003. Learned counsel sought to persuade th....