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TMI Blog2009 (10) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... epted. Consequently, all the writ petitions stand allowed as far as this aspect is concerned. - 10736,10737,10738,10739,17313,17314,17315, 17316,20185 of 2009 - - - Dated:- 19-10-2009 - CHITRA VENKATARAMAN , J. ORDER:- Mrs. CHITRA VENKATARAMAN J. The common issue in these writ petitions relates to disallowance of the claim of the petitioner in respect of refund of tax paid by him at 12.5 per cent as against four per cent chargeable thereon. The said claim is made by virtue of section 18(2) of the Tamil Nadu Value Added Tax Act, 2006 (hereinafter referred to as, the Act ). Apart from this common issue, W.P. Nos. 10736 to 10739 of 2009 relates to a question regarding input tax credit on the paper board used by the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on section 18 of the Act particularly to section 18(2). On notice, the respondent has filed counter before this court, wherein the respondent has taken a stand that in respect of the tax paid at 12.5 per cent, when the petitioner had paid the tax at the rate exceeding the rate permitted under the Act, refund is a matter between the purchaser and the seller and on that score, the petitioner cannot claim refund of the entire amount. It is admitted in the counter that the petitioner had been assessed at four per cent as applicable to sale of capital goods and hence restricted the claim of refund to the petitioner to the balance of tax payable, paid over and above four per cent. The respondent further referred to section 40(2)(i) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther goods that are exported as specified in subsection (1), subject to such restrictions and conditions as may be prescribed. Going by the said provisions of the Act, while section 18(1) gives the details about the zero rating under certain stated circumstances, subsection (2) deals with the right of a dealer, who makes a zero rating sale, for a refund of the input tax paid or payable by him on purchase of those goods which are exported as such, or consumed or used in the manufacture of exported goods as specified under sub-section (1). Sub-section (3) provides for a default clause that where the dealer has not adjusted the input tax credit or made a claim for refund within a period of 180 days from the date of accrual of such ITC, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund of amount paid as per the assessment order has to be given in toto without any adjustment whatsoever. The learned Additional Government Pleader submits that having regard to the wording in section 18(2) input tax paid, payable, it stands to reason that what has been remitted to the Government has to be returned back only to the remitter of the tax and in this case, the petitioner not being a person who had remitted the tax to the Government, the refund could not be ordered and hence he, supports the order of the authority concerned. I do not agree with the contention of the learned Additional Government Pleader, who overlooks the fundamental fact of difference between the earlier Act and the present Act that when the ITC claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has to be given its full thrust and consequently, I reject the plea of the learned Additional Government Pleader. In the circumstances, the claim of the petitioner as regards the refund of tax without any reduction has to be accepted. Consequently, all the writ petitions stand allowed as far as this aspect is concerned. However, with reference to Writ Petition Nos. 10736 to 10739 of 2009, the petitioner has raised yet another issue as regards the assessability of paper board. The decision on this has to go only before the authorities constituted under the Act. Hence, while rejecting this prayer, considering that the assessment in question related to the period April, 2007 to June, 2007, the petitioner is permitted to file revisions und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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