TaxTMI 
TaxTMI 
2025 (7) TMI 143
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....orporated under the provisions of the Companies Act, 1956 and it has its Registered Office at Industrial Estate, Bazaltali, Post Office - Borgurie, District - Tinsukia, Assam. It has an industrial unit also at Industrial Estate, Bazaltali, Post Office - Borgurie, District - Tinsukia, Assam where it is engaged in the manufacture of Calcined Petroleum Coke [CPC]. 3. In order to appreciate the issues raised in this writ petition, the sequence of events leading to the issuance of the impugned Order dated 22.09.2022 needs to be delineated, at first. I. Case projected in the writ petition :- 4. The petitioner has stated that it used to purchase Raw Petroleum Coke [RPC] within the State of Assam on payment of local taxes and after conversion of Raw Petroleum Coke [RPC] into Calcined Petroleum Coke [CPC], different quantities of Calcined Petroleum Coke [CPC] were sold in the course of inter-State trade or commerce during the Assessment Years under reference and it paid Central Sales Tax on the sold Calcined Petroleum Coke [CPC] as per the provisions of the Central Sales Tax Act, 1956 ['the CST Act'] and other provisions of law in force. It is the case of the petitioner that as per....
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....espectively for refund of sums of Rs. 75,22,550/- Rs. 69,44,147/- and Rs. 87,44,145/- respectively which sums were paid as local taxes on purchase of Raw Petroleum Coke [RPC] from various refineries within the State of Assam. The Raw Petroleum Coke [RPC] were converted to Calcined Petroleum Coke [CPC] and thereafter, Calcined Petroleum Coke [CPC] was sold to various States through inter-State trade or commerce and the Central Sales Tax was paid on such inter-State sales. 6.3. The petitioner has further stated that the Assessing Authority completed that audit assessment of the petitioner for the Assessment Years: 2006-2007 to 2008-2009 under the AVAT Act vide Orders of Assessment dated 10.03.2012. The petitioner has stated that no order with regard to its refund claims submitted under Section 15[b] of the CST Act were made at the time of audit assessments. 6.4. It is further stated that for the Assessment Years: 2011-2012, the petitioner submitted its application on 01.08.2012 for refund of a sum of Rs. 1,60,44,182/- being the local taxes paid on purchase of Raw Petroleum Coke [RPC] within the State of Assam, and refund claim was made after selling Calcined Petroleum Coke [CPC....
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....ubmitted earlier for the Assessment Years: 2009-2010, 2010-2011 and 2011-2012 were not available in the records of the Assessing Authority, the petitioner was requested to re-submit the said applications by the Assessing Authority. Accordingly, the petitioner re-submitted the refund applications for the Assessment Years: 2009-2010, 2010-2011 and 2011-2012 on 23.12.2015. On 23.12.2015, the petitioner also submitted the refund applications for the Assessment Years: 2012-2013, 2013-2014 and 2014-2015, as already mentioned hereinabove. 8. The petitioner has claimed that it submitted its claims for the refund of the taxes paid on the purchase of Raw Petroleum Coke [RPC] within the State which after conversion into Calcined Petroleum Coke [CPC] was sold in the course of inter-State trade or commerce and the tax was paid thereon under the CST Act. According to the petitioner, the refund applications were submitted under Section 50[1] of the AVAT Act read with Rule 29 of the AVAT Rules claiming refunds as per the provisions of Section 15[b] of the CST Act. According to the petitioner, Section 15[b] of the CST Act had provided that where any tax was levied under the local law on the sale....
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....2.2015 Rs. 1,47,23,531/- ------------- 2015-2016 10.01.2017 Rs. 1,02,45,820/- ------------- 2016-2017 29.07.2017 Rs. 161,29,37,601/- ------------- 2017-2018 29.07.2017 Rs. 48,10,455/- ------------- 12. Section 36 of the AVAT Act has provided for Audit Assessment. In sub-section [1] of Section 36, the reasons for which Audit Assessment can be undertaken are mentioned in sub-clauses [a], [b], [c] and [d]. Sub-rule [1] of Rule 22 : 'Audit Assessment' of the AVAT Rules has enumerated the categories of cases from Clause [i] to Clause [xi] in respect of which Audit Assessments can be taken up under Section 36 of the AVAT Act. 13. The petitioner has further stated that after the decision dated 12.01.2017 passed in Civil Appeal no[s]. 5518-5519 of 2013 [the State of Assam & others vs. M/s Guwahati Carbon Ltd. & another etc.] by the Hon'ble Supreme Court, the petitioner submitted a Letter to the Assistant Commissioner of Taxes, Tinsukia on 26.07.2017 requesting to reimburse the amount of Value Added Tax paid on the purchase of Raw Petroleum Coke [RPC] made within the State during the period from 2006-2007 to 2015-2016 amounting to Rs. 9,98,37,....
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....um claimed by the petitioner from 12.07.2013 till the final Assessment Orders, in order to process the petitioner's claim of reimbursement and interest on such amount. 16. In response to the above Office Letter dated 20.09.2019, the petitioner submitted an undertaking by way of an affidavit, as sought for by the Joint Commissioner of State Taxes of Assam, to the effect that the petitioner shall have no further claim for interest other than simple interest @ 10% per annum from 12.07.2013 as per the interim Order of the Hon'ble Supreme Court. 17. Thereafter, the Commissioner of Taxes, Assam [the respondent no.3] vide an Office Letter no. CTS-1/2019/33 dated 25.10.2019 wrote to the Deputy Secretary to the Government of Assam, Finance [Taxation] Department [the respondent no. 2] submitting a proposal for reimbursement of an amount of Rs. 50,81,450/- for the Assessment Years: 2006-2007 and to accord approval for sanctioning the said amount to the dealer, that is, the petitioner on account of local taxes paid on purchase of Raw Petroleum Coke [RPC] in terms of the provisions of Section 15[b] of the CST Act and also in compliance of the Orders of the Hon'ble Supreme Court and the vi....
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....sent writ petition seeking the following reliefs :- In the aforesaid premises it is therefore prayed that your Lordship would graciously be pleased to admit this petition, call for the records and issue Rule, calling upon the Respondents to show cause as to why writ in the nature of Certiorari and / or a writ of like nature should not be issued setting aside and / or quashing the impugned order dated 22.09.2022 passed by the Commissioner of Taxes, Assam, respondent No. 3, rejecting the refund proposals of the petitioner for the AY 2006-07 to 2013-14 and as to why the impugned action of the Respondent Authorities in not disbursing the claim of the Petitioner Company on account of refund under Section 15[b] of the Central Sales Tax Act, 1956 for AY 2006-07 to 2013-14 should not be declared illegal, without jurisdiction and as to why a writ in the nature of Mandamus and/or a writ of like nature should not be issued directing the Respondents to forthwith disburse the claims of the Petitioner along with interest on account of refund under Section 15[b] of the Act of 1956 for AY : 2006-07 to 2013-14 on the basis of the proposal forwarded by the then Commissioner of Taxes, Assam,....
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....n [1992] 1 GLR 82 [DB]. It was the State of Assam who despite the settled position of law once again took the matter to the Hon'ble Supreme Court in Civil Appeal no[s]. 5518-5519 of 2013. 23.1. Learned Senior Counsel has further submitted that if a dealer purchased Raw Petroleum Coke [RPC] within the State of Assam by paying Value Added Tax levied under the AVAT Act and sold the same after converting the purchased Raw Petroleum Coke [RPC] into Calcined Petroleum Coke [CPC], which was also a declared commodity under the phrase, 'Coal, including Coke in all its forms', in the course of inter-State trade or commerce and the dealer had paid Central Sales Tax under the CST Act on such sold Calcined Petroleum Coke [CPC], then the dealer would be entitled to get reimbursement of the Value Added Tax amount paid on intra-State purchase of declared goods, that is, Raw Petroleum Coke [RPC] under the provisions of Section 15[b] of the CST Act. Such a claim for reimbursement is to be processed under Section 50 of the AVAT Act read with Rule 29 of the AVAT Rules. In case of delay in processing reimbursement, statutory interest is to be paid in terms of Section 52 of the AVAT Act. 23.2. It ....
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.... a party to a case before the Hon'ble Supreme Court. The respondent no. 3 has also failed to consider the fact that it was the State of Assam which, despite the law declared and in force since long, had preferred the appeals, Civil Appeal no[s]. 5518-5519 of 2013 which were finally dismissed on 12.01.2017. In support of such contentions, a decision of the Hon'ble Supreme Court in M.S.L. Patil, Assistant Commissioner of Forests, Solarpur [Maharashtra] and others vs. State of Maharashtra and others, [1996] 11 SCC 361, has been referred to. 23.4. It is further contended that Section 15[b] of the CST Act was an independent provision and a claim for reimbursement can be processed only when a person had paid local taxes on declared goods and the said declared goods were sold in the course of inter-State trade or commerce by paying Central Sales Tax thereon. It was only after completion of assessment the Assessing Authority, on filing of a claim for reimbursement of taxes under Section 15[b] of the CST Act, had to verify whether the dealer was entitled for reimbursement. The reason for which all the proposals of reimbursement of the petitioner were kept pending had been mentioned in th....
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....ld be alluded to in a later part. 24.1. It is contended that the Assessing Authority could not have acted under Section 42 of the AVAT Act in respect of the case of the petitioner as there was no order from any court or tribunal. Therefore, the re-assessment orders passed exercising power under Section 42 of the AVAT Act were void and the further proceedings taken on the basis of those orders were also void, being not permissible. 24.2. As the proposals for reimbursement sent earlier by the then Commissioner of Taxes were fraught with a number of infirmities, it was deemed proper for the Commissioner of Taxes to pass the Order, assailed herein, to remove those infirmities. Therefore, it is not open for the petitioner to lay any challenge to the Order dated 22.09.2022. 24.3. It is his further contention that it is not open for the petitioner to seek support from the decision in Civil Appeal no[s]. 5518-5519 : The State of Assam and others vs. M/s Guwahati Carbon Ltd. and others, delivered on 12.01.2017, for the reason that the petitioner was not a party therein. The petitioner cannot be permitted to re-agitate its claim for reimbursement as the petitioner had not pursued th....
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.... for reimbursement if after conversion of Raw Petroleum Coke [RPC] into Calcined Petroleum Coke [CPC], the dealer sold the Calcined Petroleum Coke [CPC] in the course of inter-State trade or commerce paying taxes on such sold Calcined Petroleum Coke [CPC] as per the provisions of the CST Act. However, the factual matrix leading to the passing of the impugned Order dated 22.09.2022 in this writ petition is different from the factual matrices leading to the impugned Orders involved in the other batch of writ petition. For the said reason, it is found proper to dispose of the present writ petition by a separate judgment. 28. To understand the nature of assail, it would be beneficial to reproduce the relevant excerpts from the Order no. CST-1/2019/58 :- Government of Assam Office of the Commissioner of Taxes:: Assam Kar Bhawan::Dispur::Guwahati-6 ORDER Dated : Dispur the 22nd of Sep, 2022 No: CTS-1/2019/58 : The refund proposal of M/s Digboi Carbon Pvt. Ltd. Tinsukia, for the years 2006-07 to 2013-14, under the Assam Valued Added Tax Act, 2003 have been perused in detail along with the case records and the findings are as below : * * * * * F....
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....e under the CST Act instead of AVAT Act or vice versa and a court passes an order to that effect. Thus, it is difficult to comprehend that re-assessment under Section 42 can be done in all situations just to give effect to any order of the court. 29.1. It has been further stated that the assessment for the periods under reference have become time-barred and the re-assessments made were null and void ab-initio. Further, the original assessments made by the jurisdictional authorities did not allow the claim of the dealer for reimbursement of Value Added Tax made under Section 15[b] of the CST Act read with Section 50 of the AVAT Act. As the dealer did not challenge those original assessment orders, the original assessment orders had attained finality on expiry of the period of appeal and revision. 29.2. The petitioner falls in the category of persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after a long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such persons cannot claim the benefit of the judgment rendered in the case of similarly....
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....ssessments made by the jurisdictional Assessing Officer in purported exercise of the powers under Section 42 of the AVAT Act are outside the jurisdiction and as per provisions of Section 39 of the AVAT Act, assessments made after the expiry of five years from the end of the Assessment Year would become time-barred. [ii] In the original assessments, the jurisdictional Assessing Authority did not allow the claim of the petitioner for reimbursement under Section 15[b] of the CST Act and the petitioner did not challenge such assessment orders passed and as a result, those assessment orders had attained finality on expiry of the period of limitation for appeal and/or revision. [iii] The petitioner was not a party in the proceedings of Civil Appeal no[s]. 5518-5519 of 2013 before the Hon'ble Supreme Court. The petitioner acted like a fence-sitter and it did not do anything to keep its claim alive by approaching any statutory/appropriate forum for not allowing the reimbursement claim in the original assessment orders by the jurisdictional Assessing Authority. Therefore, on the ground of laches and delays, and acquiescence, the petitioner's claim for reimbursement had....
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....o far as it imposes, or authorizes the imposition of, - [a] a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce; or [b] a tax on the sale or purchase of goods, being a tax of the nature referred to in sub-clause [b], sub-clause [c] or sub-clause [d] or Clause [29A] of Article 366, be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify. 35. Clause [c] of Section 2 of the Central Sales Tax Act, 1956, prior to its omission by the Taxation Laws [Amendment] Act, 2017, provided for the definition of 'declared goods' and 'declared goods' used to mean goods declared under Section 14 to be of special importance in inter-State trade or commerce. 36. Section 14 of the Central Sales Tax Act, 1956, prior to its omission by the Taxation Laws [Amendment] Act, 2017, used to deal on the subject-matter, 'Certain goods to be of special importance in inter-State trade or commerce'. Section 15 of the Central Sales Tax Act, 1956, prior to its omission by the Taxation Laws [Amendment] Act, 2017, used t....
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....ce, Section 50 and Section 52 are quoted herein below in their entirety :- Section 50 - Refund [1] Subject to other provisions of this Act and the rules made thereunder, if it is found on the assessment or reassessment, as the case may be, that a dealer has paid tax, interest or penalty in excess of what is due from him, the Prescribed Authority shall, on the claim being made by the dealer in the prescribed manner and within the prescribed time, refund to such dealer the amount of tax, penalty and interest paid in excess by him: Provided that, such refund shall be made after adjusting the amount of tax or penalty, interest or sum forfeited or all of them due from, and payable by the dealer on the date of passing of order for such refund. [2] Where the amount of input tax credit admissible to a registered dealer for a given period exceeds the tax payable by him for the period, he may, subject to such restrictions and conditions as may be prescribed, seek refund of the excess amount, by making an application in the prescribed form and manner, containing the prescribed particulars and accompanied with the prescribed documents to the Prescribed Autho....
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....:- 39. There is a long history of litigation on the question whether Calcined Petroleum Coke [CPC] made out of Raw Petroleum Coke [RPC] would come within the phrase, 'Coal, including Coke in all its forms'. The issue is also inter-wined, for the purpose of this case in hand, with the Section 14 and Section 15 of the CST Act and the AVAT Act. It would, therefore, be apt to trace the litigation history on the issue and the decisions rendered thereon, at first, before any deliberation on the impugned Order. [i] Coke in all its forms; Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC] :- 40. Petroleum Coke is a by-product of the oil industry. Raw Petroleum Coke, abbreviated as Coke, Pet-Coke or Petcoke, is a carbonaceous solid derived from oil refinery cooker units or other cracking processes. Calcined Petroleum Coke [CPC] as a product emerges after Raw Petroleum Coke [RPC] is subjected to the industrial process of calcination. Calcined Petroleum Coke [CPC] is created by processing Raw Petroleum Coke [RPC] into rotary kilns. Since the product of Calcined Petroleum Coke [CPC] undergoes an irreversible chemical change in the industrial process, it is chemically and physi....
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....n be excluded from its ambit. It may be that the clause mentions Coal only and then declares that that word shall include Coke in all its forms. That shows that the object of the words which follow Coal is to extend its meaning.... * * * * * .... We do not consider that when the Parliament used the word 'Coke' in Section 14[i] of the Central Act it had any intention to give it a meaning other than the ordinary dictionary meaning which would cover Petroleum Coke. At any rate, the language employed is so wide viz., 'Coke in all its forms' that Petroleum Coke which is a form of Coke cannot possibly be excluded merely by reference to the word 'Coal'. 43. It has been authoritatively held in India Carbon Limited [supra] that Coal includes Coke in all its forms and Petroleum Coke is one of the forms of Coke. Thus, Petroleum Coke was included within the declared goods of special importance in inter-State trade or commerce, as per Section 14 of the CST Act. [iii] The Assam [Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants] Taxation Act, 1955 :- 44. The Assam [Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubr....
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....e trade or commerce. The petitioner companies had asserted that they paid tax under the CST Act and in view of Section 15[b] of the CST Act, the State of Assam was required to refund the tax levied under the State Act. The Superintendent of Taxes, Assam refused the claims for refund made by the petitioner companies on the ground that Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC] were different commercial commodities. 46.2. The Division Bench considered the provisions of Article 286[3], Section 14 and Section 15 of the CST Act and the decision of the Hon'ble Supreme Court of India in India Carbon Limited [supra]. The Division Bench had held that Raw Petroleum Coke [RPC] and/or Calcined Petroleum Coke [CPC] would come within the ambit of 'Coke in all its forms' and therefore, Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC] were to be treated as one and the same for the purpose of item [ia] of Section 14 of the CST Act although the commodities were different physically. After analyzing the restrictions dealt by Section 15 of the CST Act, as it stood then, on sales tax law of the State, the Division Bench had held that though the Assam Act had treated Raw Pet....
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.... matter to the Hon'ble Supreme Court of India by way of an appeal, which was registered and numbered as Civil Appeal no. 3802 of 1992. [v] Civil Appeal no. 6073-74 of 1994: State of Bihar and others vs. Universal Hydrocarbons Co. Ltd. and another, 1994 Supp [3] SCC 621:- 47. In State of Bihar and others vs. Universal Hydrocarbons Co. Ltd. and another, reported in 1994 Supp [3] SCC 621, the case of the respondent company was that it purchased Raw Petroleum Coke [RPC] and after subjecting the same to a manufacturing process produced Calcined Petroleum Coke [CPC]. In view of payment of sales tax required under the CST Act, the respondent company claimed refund of the sales tax paid by it under the State law on purchase of raw material. By a Common Order dated 10.04.1992 passed in two writ petitions, the claim was allowed by the Patna High Court. In Civil Appeal nos. 6073-74 of 1994, the State of Bihar, as contended before the High Court, contended also before the Hon'ble Supreme Court that though the Entry under Section 14[ia] of the CST Act provided for 'Coal, including Coke in all its forms, but excluding Charcoal', if the Raw Petroleum Coke [RPC] had undergone a process of ma....
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....992] 1 GLR 82, Civil Appeal no. 3802 of 1992 came to be dismissed vide an Order dated 22.09.1995. [vii] W.P.[C] no. 4586 of 2008 [M/s Guwahati Carbon Limited vs. the State of Assam] & W.P.[C] no. 6646 of 2010 [M/s Brahmaputra Carbon Limited vs. the State of Assam]:- 49. When despite the aforesaid pronouncements the refunds were not granted to the industrial units engaged in the process of conversion of Raw Petroleum Coke [RPC] to Calcined Petroleum Coke [CPC] in terms of Section 15[b] of the CST Act, one writ petition, W.P.[C] no. 4586 of 2008 [M/s Guwahati Carbon Limited vs. the State of Assam] was preferred by M/s Guwahati Carbon Limited. The writ petition was preferred as the said petitioner's application for refund of taxes was rejected by the State authorities. Another writ petition, W.P.[C] no. 6646 of 2010 [M/s Brahmaputra Carbon Limited vs. the State of Assam] was preferred on similar grounds. Both the writ petitions - W.P.[C] no. 4586 of 2008 & W.P.[C] no. 6646 of 2010 - were allowed by the Division Bench of this Court by a common Judgment and Order dated 12.12.2012 by following the decision in Universal Hydrocarbons Co. Ltd [supra]. The Division Bench had also set a....
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....er conversion into Calcined Petroleum Coke [CPC], was sold in the course of inter-State trade or commerce by paying taxes under the CST Act. The said writ petition was disposed of by this Court by an Order dated 11.03.2015 in the following terms:- Heard the petitioner and the respondent. The Supreme Court in a similar matter [Special Leave to Appeal (Civil) 12907-12908/2013] involving similar facts and circumstances passed the following interim order. [i] 50% of the refund amount pursuant to the impugned order shall be kept separately in a separate account by the appellants. [ii] Remaining 50% of the refund amount shall be deposited by the appellants with the Registry of this Court within two months from today. The amount so deposited may be withdrawn by the respondents on furnishing suitable bank guarantee with the satisfaction of the Registrar [J-I] and also an undertaking that in the event of Appeals being allowed the amount so withdrawn shall be restituted to the appellants along with 10% simple interest from the date of withdrawal. [iii] In the event of Appeals being dismissed, the appellants shall pay to the respondents 50% of the ....
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.... Revenue Intelligence vs. Raj Kumar and others, 2025 INSC 498 to reiterate the principle. 54. It is also settled by the decision in M.S.L. Patil [supra] that if the courts have laid down a general principle of law, then the general principle of law stands applicable to every person irrespective of the fact whether he is a party to the earlier proceedings or not. The general principle of law is also extended to a situation that if a person is not a party in a lis then also the general principle of law laid down by the superior courts is applicable to him whether or not he is a party to any earlier proceeding. 55. From the above precedents, it is evidently clear that the general principles of law which are laid down are that Petroleum Coke is one of the forms of Coke and it is covered within the phrase, 'Coal, including Coke in all its forms' under Section 14 of the CST Act and it was declared as a good of special importance in inter-State trade or commerce. A good declared as a good of special importance is also referred to as 'declared good'. Though Petroleum Coke can be classified into two commercial commodities, that is, [i] Raw Petroleum Coke [RPC], and [ii] Calcined Petro....
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.... in the office of the State respondents, those were resubmitted on 23.12.2015. 57. In the Orders, mentioned in Table-II hereinabove, it is reflected that the Orders were passed under Section 42 of the AVAT Act. In the Orders, it was acknowledged that the petitioner had submitted applications for the different Assessment Years claiming reimbursement under Section 50 of the AVAT Act read with Rule 29 of the AVAT Rules on the dates mentioned above. It has been further recorded that verification of case records revealed that the petitioner is engaged in the manufacture of Calcined Petroleum Coke [CPC] from Raw Petroleum Coke [RPC] and it makes local purchase of Raw Petroleum Coke [RPC] from refineries of Assam and sells its finished product, that is, Calcined Petroleum Coke [CPC] in the course of inter-State trade or commerce. Both Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC] are acknowledged to be declared goods. It has been further recorded that Section 15[b] of the CST Act provides for reimbursement of the local tax paid on intra-State purchase of declared goods subject to the condition that Central Sales Tax has been paid on the inter-State sale of such declared go....
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....he course of inter-State trade of commerce the amount of tax paid under the local law is refundable to the dealer paying such tax. The dealer purchased Raw Petroleum Coke [RPC] from refineries by paying VAT during the relevant year and sold the same after converting the same into Calcined Petroleum Coke [CPC] which is the same declared commodity namely 'Coke in all its forms'. The Hon'ble Supreme Court in the case of the State of Bihar and others vs. Universal Hydrocarbon Co. Ltd. and another, 1994 Supp [3] SCC has upholding the judgment of the High Court, Patna and held under exact facts the local tax to be reimburse/refundable'. The Hon'ble Supreme Court vide an order dated 12.01.2017 dismissed the appeals filed by the State of Assam and other against the Gauhati High Court order dated 13.12.2012, hence the decision of the Supreme Court fully supports the respondent/dealer. 58. There is no dispute to the facts and law stated in the above 'Ground of Refund'. It was pursuant to the above re-assessment Orders made under Section 42 of the AVAT Act, the Joint Commissioner of State Tax, Assam from the Office of the Commissioner State Tax, Assam wrote the Office Lett....
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....sioner of Taxes had inter-alia had made the following observations :- [i] The refund proposals were processed by the Commissionerate with views taken from the Legal Remembrancer, Assam forwarded vide an Office Letter no. FTX.145/2009/Pt/280 dated 02.07.2019 and as per the direction of the Government forwarded vide an Officer Letter no. FTX.145/2019/Pt/288 dated 14.08.2019 [not placed before the Court by the State respondents]. It was mentioned that by the Government Letter dated 14.08.2019, the Commissionerate was directed to process the refund proposals of the petitioner similarly as M/s Brahmaputra Carbon Limited and M/s Guwahati Carbon Limited. [ii] Though the refund proposals were submitted by the petitioner-dealer from time to time, all the refund proposals were kept pending before the jurisdictional Assistant Commissioner of Taxes due to pendency of Civil Appeal no[s]. 5518-5519 of 2013 before the Hon'ble Supreme Court, which arose out of the refund proposals of M/s Brahmaputra Carbon Limited and M/s Guwahati Carbon Limited. In view of the Order dated 12.01.2017 passed in Civil Appeal no[s]. 5518-5519 of 2013, the common/identical question of law has bee....
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....he Assessing Authority had allowed interest @10% from 12.07.2013 to 12.06.2018. When the refund proposals/assessment orders were forwarded by the jurisdictional Assistant Commissioner of Tax to the jurisdictional Deputy Commissioner of Taxes, the jurisdictional Deputy Commissioner of Taxes being satisfied with the refund proposal/assessment orders forwarded the same to the Commissionerate. [vii] Section 50 of the AVAT Act read with Rule 29 of the AVAT Rules provided for refund of any amount paid in excess. As the amounts in the refund proposals exceeded Rs. 50 lakh, prior approval of the Government would be necessary as per provisions of Rule 29[1][e] of the AVAT Rules. 61.1. With the above observations, the refund proposals were forwarded by the Commissioner of Taxes, Assam to the Government for according its approval for sanctioning refund of the amounts for the Assessment Years, as mentioned in Table-III above, on account of tax paid on purchase of Raw Petroleum Coke [RPC]; and in terms of Section 15[b] of the CST Act; and in compliance of the order of the Hon'ble Supreme Court; and in view of the opinion the Legal Remembrancer, Assam. The case records in origina....
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....ent can appoint to assist the Commissioner for carrying out the purposes of the statute, about which it would be adverted to in the paragraph 69 below. In the case in hand, no dispute has been raised as regards competence of the Assessing Authority / Prescribed Authority involved here to deal and process with an application for claiming reimbursement under Section 15[b] of the CST Act. 66. From the afore-stated procedure laid down in Rule 29 of the AVAT Rules it is evident that if the Prescribed Authority decides to reject any claim for refund filed before it by the dealer then the dealer is to be provided with a prior opportunity to show-cause in writing against such rejection. On the other hand, when the Prescribed Authority is satisfied that the refund claim is due, he shall record an order sanctioning the refund. When the audit assessment for the Assessment Years: 2006-2007 was completed on 10.03.2012, the assessment order was silent as regards reimbursement under Section 15[b] of the CST Act. The Assessing Authority / Prescribed Authority was statutorily obligated to record an order sanctioning a refund if he was satisfied that the refund claimed was due. At the same time, ....
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....c] Deputy Commissioner of Taxes; [d] Assistant Commissioner of Taxes; [e] Superintendent of Taxes; [f] Inspector of Taxes; and [g] any other person appointed as such by the Government. The Commissioner, as per sub-section [3] of Section 3, shall perform his functions in respect of the whole of the State of Assam and the other Officers shall perform their functions in respect of such area or areas or of such dealers or classes of dealers or of such cases or classes of cases as the Government may, by notification in the Official Gazette, direct. The Commissioner shall have superintendence over all Officers and persons employed in the execution of the Act and all these Officers and persons employed are obligated to observe and follow the orders, instructions and the directions of the Officers superior to them. 70. Section 79 of the AVAT Act has provided for appeals to the Appellate Authority. Sub-section [1] of Section 79 has prescribed that any person aggrieved by an order passed under the AVAT Act by a taxing authority lower in rank than a Deputy Commissioner of Taxes, may appeal to the Appellate Authority, in the manner prescribed, within s....
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....sent case that it is the case of the respondents that the Assessment Orders by way of assessments including by way of re-assessment, for the Assessment Years on 12.06.2018, 15.06.2018, 22.06.2018, 25.06.2018 and 26.06.2018 as indicated in Table-II above under Section 42 of the AVAT Act were unauthorized. The said orders were passed by the jurisdictional Assistant Commissioner of Taxes, who is one of the taxing authorities under Section 3[2] of the AVAT Act and who assists the Commissioner to carry out the purposes of the AVAT Act. 73. It is a settled proposition that when an authority passes an order in exercise of a power delegated to him by the delegating authority, the delegating authority cannot sit in appeal on the order passed by the delegated authority. The proposition is based on the principle that once the power has been delegated and the delegated authority has passed an order in exercise of the powers delegated to him then the order passed by the delegated authority itself is an order of the delegating authority and the delegating authority ceases to have any power to overturn the decision made by the delegatee in exercise of that delegated power. When looked from thi....
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....ch a satisfaction that the order is erroneous and prejudicial to the interests of Revenue. The two conditions which must be satisfied before the Commissioner can exercise powers under Section 82 of the AVAT Act are that the order of the assessing authority must be found to be erroneous and it must also be found to be prejudicial to the interests of the Revenue. If the two conditions are not satisfied, the Commissioner does not get jurisdiction to pass an order revising the assessment order. 76. It has been consistently laid down that it is not necessary that every order which is found erroneous is also prejudicial to the interests of the Revenue. What is meant by the words 'prejudicial to the interests of the Revenue' has not been defined. However, giving the ordinary meaning to the words used in the statute, they must mean that the orders under consideration are such as are not in accordance with law and in consequence whereof, the lawful revenue due to the State has not been realised or cannot be realised. The well settled principle of considering the question as to whether an order is prejudicial to the interests of the Revenue or not is to address oneself to the question whe....
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....aw is, therefore, well settled that the power of review is a creature of the statute and it is not an inherent power. It needs to be conferred by the statute either by express/specific provision or by necessary implication. No Court or quasi-judicial authority or statutory authority can review its judgment or order or decision unless it is legally empowered to do so. 80. The predecessor Commissioner had forwarded the reimbursement proposals for different amounts to the Government for the Assessment Years: 2006-2007 to 2013-2014 on the dates and for the amounts mentioned in Table-III above and by recording the reasons why the reimbursement proposals were to be allowed, as already outlined in paragraph 61. The refund proposals were forwarded for Government approval by the Commissioner earlier after due and proper application of mind, which is amply demonstrated by the fact that he recorded the reasons which led him to forward the refund proposals. Such forwarding of the reimbursement proposals were in conformity with the procedures laid down in Rule 29[1][e] of the AVAT Rules. The decision to forward the refund proposals to the Government by the Commissioner who was the predecesso....
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.... so would amount to discrimination and would be violative of Article 14 of the Constitution of India. Elucidating further, it has been observed that the principle is, however, subject to well-recognised exception in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the courts earlier in time succeeded in their efforts, then such persons cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 85.1. However, an exception is carved out from the above exception by stating that the exception will not apply in those cases where the judgment pronounced by the court was a judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit th....
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.... such claim for re-validation. The grounds for rejection were inordinate delay in seeking re-validation and also the merits and permissibility of the claim. 87.1. The petitioners alleged that their claims were similar to two other Export Houses, who had filed writ petitions in the year 1984 before the High Court for issuance of appropriate writs to the authorities to re-validate the Imprest Licences. Those writ petitions were initially allowed by the learned Single Judge of the High Court and the Division Bench, later on, affirmed the decision of the learned Single Judge. The Special Leave Petitions, preferred by the Union of India in 1985 and 1986, were dismissed by the Hon'ble Supreme Court. The petitioners said that they made the demand for re-validation immediately after the decision of the High Court and claimed that the rejection of their claims was wholly discriminatory, as there was no basis on any distinction. 87.2. Dismissing the petitioners' writ petition, the Hon'ble Supreme Court had held that the petitioners were re-agitating which they had not pursued for several years. The petitioners were found not vigilant but were content to be dormant choosing to sit on th....
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....: 'Introduction', U.N. Mitra, Tagore Law Lectures - Law of Limitation and Prescription, Vol. I, 14th Edn., 2016.] However, acquiescence will not apply if lapse of time is of no importance or consequence. 40. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. [See : Vidyavathi Kapoor Trust v. CIT, (1992) 194 ITR 584]. Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in ....