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TMI Blog2008 (8) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - - - Dated:- 18-8-2008 - CHAUHAN B.S. C.J. DR. AND MAHAPATRA B.N., JJ. DR. B.S. CHAUHAN C.J. This writ petition has been filed for issuance of a direction to the opposite parties to refund the sales tax collected from the petitioner-company by quashing the order dated February 4, 1998 (annexure 1) and assessment order dated March 24, 1998 (annexure 2) to the writ petition. The petitioner had established a large-scale industrial unit. However, it claimed benefit of tax exemption in view of part III of the Industrial Policy Resolution, 1989 (hereinafter called IPR 1989 ) by filing an application on January 22, 1991. As the same was not granted, he filed OJC No. 6198 of 1994 which was decided vide judgment and order dated May ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis for such an order of recovery, even if not based on contract or tort, may fall on another category of quasi-contract or restitution. The honourable Supreme Court, while deciding the said case, approved and followed two decision of English Courts, namely Fibrosa v. Fairbairn [1942] 2 All ER 122 and Nelson v. Larholt [1947] 2 All ER 751, which are quite illuminating and the relevant parts thereof, respectively, are reproduced as under: ...any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in Engl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hiv Shanker Dal Mills v. State of Haryana AIR 1980 SC 1037, Newabganj Sugar Mills Co. Ltd. v. Union of India AIR 1976 SC 1152 and Sales Tax Officer, Banaras v. Kanhaiya Lal Makund Lal Saraf [1958] 9 STC 747 (SC); AIR 1959 SC 135. In Newabganj Sugar Mills AIR 1976 SC 1152, the honourable Supreme Court devised a procedure to deal with a situation where equity demanded re-distribution but procedural expensiveness and cumbersomeness effectively thwarted legal action by directing the Registrar of the High Court to receive and dispose of claim from the ultimate consumer for excess price paid on proper proof. In Amar Nath Om Parkash v. State of Punjab [1986] 62 STC 130 (SC); AIR 1985 SC 218, the apex court observed that a mere declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 111 STC 467 (SC); [1997] 5 SCC 536, Pawan Alloys Castings Pvt. Ltd. Meerut v. U.P. State Electricity Board AIR 1997 SC 3910, Acqueous Victuals Pvt. Ltd. v. State of U.P. AIR 1998 SC 2278 and Bhadrachalam Paper Boards Ltd. v. Government of Andhra Pradesh [1998] 111 STC 657 (SC); AIR 1998 SC 2634. In Shree Digvijay Cement Co. Ltd. v. Union of India AIR 2003 SC 767, the honourable apex court explained the scope of the principle of unjust enrichment and held that before a claim is accepted, the claimant has to establish and satisfy the authority concerned that he has not passed on burden to any other person, i.e., consumer. In absence thereof, the money paid by somebody else cannot be claimed by him. The court held as under: ...Where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a very wide claims raising a large number of issues. However, he is not able to satisfy the court as to under what circumstances, the findings of fact recorded by the assessing authority is factually incorrect. It may be pertinent to mention hereunder the relevant part of the assessment order: The dealer-company has admittedly returned no amount to its purchasers from whom he collected the sales tax during the tax holidays period and the dealer-company submitted that it will be a cumbersome process to return the sales tax so collected to its purchasers if refund of that amount is allowed. Instead the dealer submitted that if tax holidays period is extended by two months it can legally avail exemption for a period of five years. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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