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TMI Blog2011 (7) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner P. Balaji Verma, Special Standing Counsel for Commercial Taxes, for the respondents ORDER The petitioner seeks refund of ₹ 31,04,742 consequent to the order of the Sales Tax Appellate Tribunal (STAT) in T. A. No. 17 of 1994 dated December 22, 1998 relating to the assessment year 1988-89 (APGST). They also claim interest under section 33F of the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to as, the Act ). The petitioner, a public limited company with its registered office at Mumbai and its regional marketing office at Secunderabad, is engaged in the business of manufacture, purchase and sale of cement, and is a registered dealer both under the Andhra Pradesh, General Sales Tax Act, 1957 and the Central Sales Tax Act, 1956. For the assessment year 1988-89 (APGST), the assessing authority passed an order dated December 30, 1992, forfeiting ₹ 31,04,742, under section 30B of the Act, towards excess collection of tax. Aggrieved thereby the petitioner filed an appeal under section 19 of the APGST Act before the Appellate Deputy Commissioner who, by his order dated July 15, 1993, dismissed the appeal. Aggrieved thereby the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion being remitted to each individual purchaser ; having collected tax from their purchasers, the petitioner was seeking to unjustly enrich themselves claiming refund from the Government ; and, in view of section 33B of the Act, no refund could be made since the petitioner had merely remitted the tax collected from their purchasers to the Government. He would rely on Mafatlal Industries Ltd. v. Union of India [1998] 111 STC 467 (SC). Before examining the rival contentions it is necessary to briefly refer to the relevant provisions. Section 30B(1) of the APGST Act prohibited a dealer from collecting any sum by way of tax, in respect of sales or purchases of any goods, which are not liable to tax under the Act. Under sub-section (2) thereof no dealer shall collect any amount by way of tax in excess of the amount of tax payable by him on the sale by him under the provisions of the Act. Section 33BB relates to non-refund of tax in certain cases and, where a levy and collection of tax is held invalid by any judgment or order of a court or Tribunal, it shall not be necessary to refund any such tax to the dealer unless it is proved by the dealer to the satisfaction of the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where a refund is due to the assessee, in pursuance of an order referred to in section 33B, and the assessing authority does not grant the refund within a period of six months from the date of such order, the State Government shall pay to the assessee simple interest at twelve per cent per annum on the amount of refund due from the date immediately following the expiry of the period of six months till the date on which the refund is granted. Under rule 43 of the APGST Rules, 1957, every order passed by the Appellate Tribunal shall, on authorization by it, be given effect to by the assessing authority, who shall refund without interest, within two months from the date of communication of the authorization, any excess tax found to have been collected. Under rule 44AA, every claim for refund under section 33 shall be made to the assessing authority in form XXIII, and shall be verified in the manner specified therein. As noted hereinabove, section 30B(2) of the APGST Act prohibits a dealer from collecting any amount by way of tax in excess of the tax payable by him on the sales made under the provisions of the Act. It is not in dispute that the petitioner has collected excess tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund of the amount to them. The petitioner is seeking to retain the excess tax collected though they were precluded from collecting such excess tax under section 30B(2) of the Act. It is no doubt true that the order of forfeiture, passed under section 30C(1) of the Act, has been set at naught by the STAT. It must, however, be borne in mind that what the petitioner is now seeking is for a direction to the respondents to refund the tax collected by them in excess of what is prescribed under the Act. In effect, the petitioner seeks a direction from this court to permit them to unjustly enrich themselves at the cost of the State. The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect tax from both ends. In other words, he cannot collect the said amount from his purchaser at one end and also collect the same amount from the State on the ground that it has been collected from him contrary to law. The power of the court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. The State represents the people of the country. No one can speak of the people being unjustly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot exercise jurisdiction unless substantial injustice has ensued or is likely to ensue. (Sangram Singh v. Election Tribunal, Kotah AIR 1955 SC 425). One of the principles inherent is that exercise of discretionary power should be for the sake of justice and, if granting relief results in greater harm to the society, the court may refrain from exercising the power. (State of Maharashtra v. Prabhu [1994] 2 SCC 481). This court exercises its discretionary power, under article 226 of the Constitution of India, with great caution and only in furtherance of public interest, and not merely on the making out of a legal point. This court is required to keep larger public interest in mind in order to. decide whether its intervention is called for or not. Only when it comes to the conclusion that overwhelming public interest requires interference, would it intervene in the matter. (Master Marine Services Pvt. Ltd. v. Metcalfe and Hodgkinson Pvt. Ltd. [2005] 6 SCC 138 and Air India Ltd. v. Cochin International Airport Ltd. [2000] 2 SCC 617). Granting, the relief sought for by the petitioner would enable them to unjustly enrich themselves at the cost of the State, and retain the tax collecte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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