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TMI Blog2008 (10) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... n 7-A of the Adhiniyam provides that the occupier of a sugar factory shall be liable to pay to the State Government, in the manner prescribed, administrative charges at such rate, not exceeding Rs.5/- per quintal as the State Government from time to time notify, on the molasses sold or supplied by him. The petitioner has further alleged that the U.P. Sheera Niyantran Adhiniyam, 1964 is a Special Act and the same has been enacted for the control of storage, gradation and price of molasses produced by sugar factories in Uttar Pradesh and the regulation of supply and distribution and Sub-section 5 of Section 7-A provides that the occupier shall be entitled to receive from the person to whom the molasses is sold or supplied an amount equivalent to the amount of such administrative charges, in addition to the price of molasses. The petitioner has further alleged that the State Government is already charging tax from the petitioner under the U.P. Sheera Niyantran Adhiniyam, 1964, which is a Special enactment for molasses only and as such under the provisions of U.P. Trade Tax Act, 1948 no tax can be realised from the petitioner as it will amount to double taxation on the sale of same p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of U.P. it will not apply to the petitioner in respect to the purchase of molasses from the Sugar Factories as the Sugar Factory recovers administrative charges from the petitioner and passes it on to the Government under the Special Enactment i.e U.P. Act No.XXIV of 1964. Learned counsel for the petitioner has relied upon the decision of Hon'ble the Supreme Court in the cases of Belsund Sugar Co.Ltd., v. State of Bihar and others, reported in (1999) 9 SCC 620, Gobind Sugar Mills Ltd. v. State of Bihar and others, reported in (1999) 7 S.C.C. 76 and Beg Raj Singh v. State of U.P. and others, reported in (2003) 1 SCC 726. He further submitted that in the case of D.S.M Group of Industries and another v. Chairman, Trade Tax Tribunal, U.P. and others, reported in 2002 U.P.T.C. 955, the Hon'ble Single Judge of this court has held that molasses is not taxable under the U.P. Trade Tax Act, 1948 and that the Special Act will prevail over general Act and the Special Leave Petition (C) No.8845 of 2002, State of U.P. and others v. D.S.M. Group of Industries and another against the said judgment was dismissed by Hon'ble the Supreme Court by the judgment and order dated 10.3.2003. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the writ petition. He further submitted that the petitioner has not stated in the writ petition that he has not passed on the burden of tax paid by him to the consumer of the yeast and as such he is not entitled for refund on the principles of unjust enrichment. He has relied upon the decisions of Hon'ble the Supreme Court in the cases of Mafatlal Industries Ltd. and others v. Union of India and others, reported in (1997) 5 SCC 536, U.P. Pollution Control Board and others v. Kanoria Industrial Ltd. and another, reported in (2001) 2 SCC 549 and Somaiya Organics (India) Ltd. & another v. State of U.P, and another, reported in (2001) 5 SCC 519. We have considered the submissions made by the learned counsel for the parties and gone through the record. The petitioner which is a Private Limited Company has alleged that its unit at UPSIDC, Industrial Area, Sandila District Hardoi, is manufacturing yeast from molasses. It is admitted case of the parties that the petitioner is purchasing molasses for the manufacture of yeast from various Sugar Factories situated in the State of U.P. It is also admitted case of the parties that the State of U.P. enacted the U.P. Sheera Niyantran Adh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of goods. Sri J.N. Mathur, learned Additional Advocate General has fairly conceded that administrative charges collected by the Sugar Mills on the purchase of the molasses by the petitioner is a tax. He has also conceded that the U.P. Sheera Niyantran Adhiniyam, 1964, being a Special enactment will override the provisions of the U.P. Trade Tax Act, which is a general Act providing for collection of taxes on sale and purchase of goods. Sri J.N. Mathur has also conceded that in the case of M/s.D.S.M. Group of Industries and another v. Chairman, Trade Tax Tribunal, U.P. and others (Supra), Hon'ble Single Judge of this Court has held that molasses is not taxable under the U.P. Trade Tax Act, 1948 and the Special Leave Petition preferred by the State of U.P. against the said judgment was dismissed by Hon'ble the Supreme Court on 10.3.2003. Now the only question for determination in the writ petition is regarding the refund of the trade tax which the opposite parties have realised from the petitioner through Sugar Mills on the purchase of molasses. It is admitted case of the parties that the State of U.P. is realising administrative charges on the purchase of the molasses b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India forbids State from making unlawful levy or collecting tax unlawfully. The Constitution Bench of Hon'ble the Supreme Court in the case of Mafatlal Industries Ltd. and others v. Union of India and others, has held in para 123 as under : "A point has been made that the manufacturer has passed on the burden of the illegal levy to his customers by raising his price of the goods. But that is no reason why the guarantee given by the Constitution should not be enforced. The manufacturer may have been compelled to raise the price because of the imposition of an illegal levy. But that is no reason to dilute the mandate contained in Article 265 of the Constitution. Article 265 forbids the State from making an unlawful levy or collecting taxes unlawfully. The bar is absolute. It protects the citizens from any unlawful exaction of tax. So long as Article 265 is there, the State cannot be permitted to levy any tax without authority of law and if any tax has been collected unlawfully that must be restored to the person from whom it was collected. If the tax has been collected from any person unlawfully, is the taxpayer's money which is in unlawful possession of the State. 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