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TMI Blog2011 (11) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioners are registered partnership firm (in Writ Tax No. 1257 of 2007); a public limited company (in Writ Tax No. 1258 of 2007) and a private limited company (in Writ Tax No. 1357 of 2007), engaged in the business of manufacture and sale of Rajnigandha (pan masala), "tulsi (tobacco mixed pan masala) and "tulsi" (tobacco mixed pan masala), respectively. By U.P. Tax on Luxuries Ordinance, 1994, luxury tax was imposed on the sale of pan masala and gutka (without tobacco), with effect from June 15, 1994. The constitutional validity of the Ordinance was challenged in this court in W.P. No. 619 of 1994 (Varshney General Sales v. State of U.P. [2003] 130 STC 202 (All)). A Division Bench of this court allowed the writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons to the principles of unjust enrichment, laid down by the Supreme Court in Mafatlal Industries Ltd. v. Union of India [1998] 111 STC 467 (SC). In reply to the notices given to the petitioners on July 31, 2007, the petitioners submitted a reply, stating therein, in reply to para No. 4 as follows: "That in reply to para No. 4, we submit that the manufacturing profit and loss account for all the products of the company is prepared in a consolidated statement and there is no provision for showing the cost price and selling price of various products separately. We have already filed our complete final accounts along with balance sheet which have been prepared and audited as per statutory provisions." The Deputy Commissioner (Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofit and loss account on expenditure side, it is clear that the goods were sold (tobacco/tobacco products), including the luxury tax. Sri Bharat Ji Agrawal, learned counsel for the petitioner, submits that once the levy of luxury tax was declared to be unconstitutional, without any prospective effect, the entire amount deposited by the petitioners was liable to be refunded. The enquiry made by the Deputy Commissioner (Commercial Tax), Noida, in pursuance of the directions of this court, was limited to the fact whether the petitioner had deposited the luxury tax declared as ultra vires after collecting it from the consumers. The question of refund thereafter was to be looked into with the possibility whether and why it may not be possible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed from the consumers could be established. The petitioners did not disclose the gradients of the Unit Cos. Section 8A(1D)(ii) of the U.P. Trade Tax Act, obliged the petitioners to show the price of goods sold and the amount of tax realized separately on the cash memo or the bills. During the period in question, the petitioners were responsible to collect tax and deposit, which they actually did. The exceptions to the principles of unjust enrichment have to be strictly construed. It is difficult to believe that a person engaged in the business of manufacture and sale of tobacco products, such as pan masala and gutka, would deposit the luxury tax without collecting it from the consumers. The burden of proof of not collecting luxury tax, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terim orders from this court, they will pay the said amounts to the respective State Governments."
In these cases, we are concerned with refund of the luxury tax deposited by petitioners and not with realizations made by the petitioners. The Trade Tax Department has not given any notices, nor intimated any process to recover the unpaid luxury tax, collected by the petitioners from consumers. We thus leave it open to the respondents to make an enquiry in this regard and if they arrive at the conclusion, after giving notice and hearing the petitioners, that any amount of luxury tax, collected from consumers, has not been paid deposited, to recover the same from the petitioners.
All the writ petitions are dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
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