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TMI Blog1968 (10) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... he value of machinery imported from Sweden and sold to Bharat Heavy Electricals Limited, under a permit therefor issued to the latter by the Assistant Controller of Imports, under the Import Trade Control Regulations. The permit was dated 12th November, 1964. According to the terms of the contract between the parties, the seller was paid 90 per cent. of the invoice value and the sales tax in full when presenting the invoice to the purchaser. That was on 4th February, 1966. A second invoice also was presented on 24th March, 1966. The assessment was on the combined values under both the invoices. The seller, in its return for the year 1965-66, showed the turnover as chargeable to tax and did not claim any exemption on the ground that it relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sk for refund of such tax by means of a petition under Article 226 of the Constitution. The leading authority, followed subsequently in several cases, is Sales Tax Officer v. Kanhaiya Lal Makund Lal Saraf[1958] 9 S.T.C. 747. State of Kerala v. Aluminium Industries Ltd.[1965] 16 S.T.C. 689. establishes two propositions: (1) Where a tax is levied by mistake of law, it is ordinarily the duty of the State, subject to any provision in the law relating to sales tax, to refund the tax: no question of estoppel will arise when the mistake of law is common to both the parties; and (2) if refund is not made, remedy through court is open subject to the same restrictions and also to the period of limitation, namely, three years from the date when the mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strates' Court, Ex Parte Greenbaum(4). That case has been digested in 26 English and Empire Digest 482 (1692). That covers a case of a person aggrieved by the refusal of a borough council to register him as a registered street trader or to grant or renew an annual licence or by the cancellation by a borough council of his registration as a registered street trader or by the revocation or variation by a borough council of an annual licence. Two street traders, both wishing to occupy a certain pitch in a street, applied to the borough council for a licence for it. The council decided in favour of one of them and the other appealed to the Metropolitan Magistrate against the refusal of the licence to him. The person in whose favour the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the purchaser can be regarded, for the present purpose, an aggrieved person who by himself can maintain the petition for certiorari. Fortunately, however, the assessee itself figures as a petitioner here and it, therefore, dispenses with the necessity of ourselves deciding the question finally. In the result, we allow the petitions, quash that part of the order of assessment in each of these cases, which charges to tax the import sales, such as are covered by Khosla & Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes(1), and direct the assessing authority to investigate the character of the transactions claimed to be import sales, in the light of the original or certified copies of the record relevant to this question, to be fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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