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TMI Blog1954 (10) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of Rs. 1,536-12-3 by proceedings dated 14th November, 1953. I have already paid the said amount. 2.. By the same proceedings I was also directed to pay an amount of Rs. 3,386 which I had collected from my customers on sales outside the State till 19th January, 1952, during the period for which the assessment was made. I preferred an appeal before the 2nd counter-petitioner against the order of the 3rd counter-petitioner dated 14th November, 1953. That appeal was dismissed by order dated 30th March, 1954" and the prayer in the petition is for a writ of certiorari or other appro- priate writ or direction quashing the two orders mentioned above. The relevant portion of the order of the 3rd counter-petitioner dated 14th November, 1953, (E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary measure as the law was not certain then. It is also contended that the Sales Tax Officer is not justified in demanding the tax under Section 11(2) of the Act, because Section 11 of the Act does not apply as this is not a collection under the Travancore- Cochin General Sales Tax Act. It is also submitted that the collection was made as a precautionary measure, and if it is not found due the amount has to be refunded to his customers, or if demanded, to the Madras State where the goods have been delivered for consumption in pursuance of the sale. The advocate has also referred to the judgment of our High Court in Velayudhan v. Agricultural Income-tax and Sales Tax Officer, Perumbavoor(1), wherein it is decided that the tax collected under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant from his customers is beyond the scope of the provisions of the Travancore-Cochin General Sales Tax Act is also not tenable, because the appellant is empowered to collect sales tax under Section 11 of the Act only. (1) [1953] 4 S.T.C. 338. (2) [1954] 5 S.T.C. 58. In the result, the appeal is dismissed". Section 11 of the Travancore-Cochin General Sales Tax Act, 1125, provides: "(1) No person who is not a registered dealer shall collect any amount by way of tax under this Act; nor shall a registered dealer make any such collection except in accordance with such conditions and res- trictions, if any, as may be prescribed: Provided that Government may exempt persons who are not regis- tered dealers from the provisions of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate under the provisions of the Act. In other words, we see no reason to depart from the view that one of us has taken in Mathew v. Sales Tax Officer, Alwaye(2). 3.. The question as to whether the petitioner is bound to return the amount in case his customer demands it back on the ground that it was paid under a mistake of law or whether the petitioner could claim a statutory immunity in respect of such demands is not a matter that arises for decision at present. We may mention in passing, however, that the position taken up by the State before us and by the learned Advocate- General of Madras in the decision mentioned above was that if the person who paid the tax applies for a refund and establishes his claim therefor the same will be gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in the Appellate Order to show that this contention was denied by the Department at that stage or that the Appellate Assistant Commissioner considered the question on its merits. 7.. The question arising on this aspect of the case can be formulated as follows: (1) Can the petitioner's averment that the collection was made solely as a precautionary measure and on the understanding that the amounts collected will be refunded if no liability to sales tax accrued in this State or the State of Madras be accepted as true; and (2) If the answer to question No. (1) is in the affirmative, will such a collection amount to a collection "by way of tax" within the meaning of Section 11 of the Travancore-Cochin General Sales Tax Act, 1125? 8.. These ..... X X X X Extracts X X X X X X X X Extracts X X X X
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