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TMI Blog1999 (8) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 4,65,652.26) and on export pass fee (Rs. 8,57,417.28). The admitted facts are that the aforesaid amounts were realised as sales tax by the dealer though no tax was leviable. The dealer after realising the aforesaid amounts deposited the same as tax under the U.P. Sales Tax Act, 1948 (now U.P. Trade Tax Act). Later on realising that no tax was leviable on the aforesaid commodities it issued credit notes in favour of the buyers and in that manner refunded the amounts to the persons from whom it was charged. It, therefore, claimed a refund of the aforesaid amounts from the assessing officer who rejected the dealer s claim by virtue of the provisions of section 29-A of the Act. The assessing officer observed that the dealer had no right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry of three years from the date of the order of assessment or one year from any date of the final order on appeal, revision or reference, if any, in respect thereof, whichever is later. Explanation.-The expression final order on appeal, revision or reference includes an order passed by the Supreme Court under article 32, article 132, article 133, article 136 or article 137, or by the High Court under article 226 or article 227 of the Constitution. 4.. Thus, the revenue has relied on sub-sections (2) and (3) and the contention of the learned Standing Counsel was that the amounts could be refunded only to the persons from whom the revisionist had charged tax that was deposited to the Government. 5.. The contention of the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sale of carbon and stencil papers as unclassified item. From the averments in the writ petition it is revealed that there seems to be some dispute whether this goods is liable to tax as unclassified item and tax leviable at 8 per cent or 6 per cent. The Commissioner, Sales Tax, under section 35 held that carbon and stencil papers are taxable at the rate of 6 per cent under the entry paper of all kinds . This decision came on July 6, 1982. The contention of the petitioner is that till this decision the petitioner bona fide believing it to fall under unclassified item realised the amount and also deposited with the department. So far as the procedure prescribed under section 29-A, it is true that when a procedure is prescribed under any pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as placed on the case of R.S. Joshi, Sales Tax Officer, Gujarat v. Ajit Mills Limited reported in [1977] 40 STC 497 (SC). If the provisions as contained in Gujarat Act was also in U.P. as in the Gujarat Act, there was section 37 where the respondent, namely, the State has right to forfeit this amount, then the position would have been different. If any amount deposited with the State was liable to be forfeited, then the argument raised by the petitioner was not available but we do not find any such forfeiture clause under the U.P. Sales Tax Act. Thus the question of the said amount stands forfeited with the State does not arise. Even the State has to return this amount to the person from whom it was realised. It is significant to refer to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allow the writ petition with costs and direct the respondents not to withdraw the refund/adjustment voucher No. 44, dated November 8, 1988 and will verify within a period of three months the veracity of which has been filed before the said authority after giving opportunity to the person concerned regarding the said payment having been made and only in case any amount is not verified, that amount will be adjusted towards the amount already deposited by the petitioner which is to the tune of Rs. 92,837.56 and then pass consequential order of refunding the amount if any amount found remaining with the respondents to the petitioner accordingly. 6.. This view was followed by another Division Bench of this Court in O.D. Industries v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her and that application for refund could be made only under statutory provision. 9.. As is evident, from the facts of the present case the dealer has already refunded the amounts to the buyers from whom it had realised the tax. This has been done by issuing credit notes which is a valid method of refund and the factum of which has not been doubted by the authorities below. Therefore, so far as the revisionist is concerned, there is no question of its being unduly enriched if refund is allowed to it. On the other hand, it is the State which would stand unduly enriched if it retains the amounts which it was not legally entitled to retain as tax. 10.. The validity of the provisions of section 29-A has been upheld by the Honourable Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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