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TMI Blog1980 (2) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... challenge the constitutional validity of any of the amended sections he did not pursue the matter further and we need take no further notice of it. - Civil Appeal No. 1897 of 1978, - - - Dated:- 12-2-1980 - PATHAK R.S. AND KOSHAL A.D. JJ. T.S. Krishnamoorthy Iyer, Senior Advocate (B. Parthasarathy, Advocate, with him), for the respondent. S.T. Desai, Senior Advocate, T.A. Ramachandran, Mrs. J. Ramachandran, and M.N. Tandon, Advocates, for the appellant. -------------------------------------------------- The judgment of the Court was delivered by KOSHAL, J.- The question which falls for determination in this appeal by certificate granted by the High Court of Andhra Pradesh against its judgment dated 19th September, 1977, is whether the appellant which is a limited company is not liable to make good to the State sales tax authorities the amount of sales tax leviable under section 6 of the Andhra Pradesh General Sales Tax Act (hereinafter referred to as the A.P. Act) in respect of the turnover covering the purchase by the petitioner of cotton during the period 1st April, 1969, to 8th June, 1969, which turnover had been exempted from sales tax by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before or after its amendment in 1974. The appellant sought a revision of the Tribunal's order by the High Court under section 22(1) of the A.P. Act but remained unsuccessful as the High Court was of the opinion (for which it relied upon Vadivelu Chetty v. Commercial Tax Officer, Tirupathi [1972] 30 S.T.C. 176., and Daita Suryanarayana and Company v. State of Andhra Pradesh [1977] 39 S.T.C. 500. that the exemption granted by the C.T.O. was "patently wrong". The High Court however granted a certificate declaring the case to be a fit one for appeal to the Supreme Court under article 133(1)(c) of the Constitution of India read with section 109 of the Code of Civil Procedure. 4.. In order to appreciate the contentions raised on behalf of the appellant it is necessary to examine the various relevant legislative provisions which are set out below: Section 10 of the Central Sales Tax (Amendment) Act, 1969 (hereinafter referred to as the 1969 Act). "10. Exemption from liability to pay tax in certain cases.-(1) Where any sale of goods in the course of inter-State trade or commerce has been effected during the period between the 10th day of November, 1964, and the 9th day of June ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 in respect of the sale or purchase inside the State of any declared goods and such goods are subsequently sold in the course of inter-State trade or commerce, the tax so levied and collected shall be refunded to the person in the manner and subject to the conditions specified in sub-rules (2) to (4)." Sub-rule (1) of the said rule 27-A after its amendment on 1st August, 1974. "Where any tax has been levied and collected under section 6 in respect of the sale or purchase inside the State of any declared goods and such goods are subsequently sold in the course of inter-State trade or commerce, the tax so levied and collected shall be reimbursed to the person in the manner and subject to the conditions specified in sub-rules (2) to (4): Provided that the refund shall not be made unless the tax payable under the Central Sales Tax Act is paid." Clauses (a) and (b) of section 15 of the Central Act as in force on 30th April, 1971. "15. Restrictions and conditions in regard to tax on sale or purchase of declared goods within a State.-Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Act in respect of such sale and we do not see how the appellant could benefit from the said section 10 in the matter of its assessment for the period in question under the A.P. Act. All that we are concerned with is the liability of the appellant to pay tax on the purchase of cotton which it sold during that period in the course of inter-State trade and that is a matter which has to be decided with reference to section 6 of the A.P. Act, rule 27-A extracted above and section 15 of the Central Act. 6.. As on 30th April, 1971, the provisions of section 6 of the A.P. Act laid down that if goods were sold in the course of inter-State trade or commerce and tax had been levied on the sale or purchase thereof under that Act, the dealer concerned would be entitled to refund of such tax. As on the date of assessment therefore, the appellant was within its rights to claim a refund of any tax that it was liable to pay on the purchase of cotton later sold by it in the course of inter- State trade; and although the section did not talk of any "exemption", all that the C.T.O. could have meant by granting the appellant "exemption" from the tax was that it became liable to pay a tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the course of inter-State trade or commerce. 9.. Faced with the above situation, Mr. Desai, the learned counsel for the appellant, pressed into service a novel contention to the effect that the appellant was not asking for any reimbursement or refund, that it was the D.C.C.T. who had cancelled the order of refund (inherent in the "exemption " granted by the C.T.O.) and that there was no provision authorising the D.C.C.T. to force the appellant to return any amount paid to it as a refund. The argument is obviously fallacious. The D.C.C.T. has done nothing more than to revise an order of the C.T.O. which has been varied only in so far as it was not in conformity with the law deemed to have been prevailing on the date of the assessment by virtue of the retrospective amendment of section 6 of the A.P. Act. It is conceded by Mr. Desai that the "exemption" has to be regarded as a composite order of levy plus refund. That part of it which granted a refund was illegal under the amended proviso to section 6 of the A.P. Act inasmuch as no reimbursement was due in respect of goods on which tax under the Central Act had not been paid. The D.C.C.T., therefore, had not only the power ..... X X X X Extracts X X X X X X X X Extracts X X X X
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