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TMI Blog2011 (12) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... finds that the claim for refund put forth by the petitioner, challenging the correctness and sustainability of exhibit P1 assessment order, is quite wrong and misconceived. The writ petition is devoid of any merit and the same is dismissed accordingly. X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption or to reduce tax liability and as such, the notifications issued in exercise of the said power cannot be made as a tool indirectly, to levy/collect any tax. It is pointed out that, alternate remedy by way of appeal is not effective, as the departmental authorities are always bound by the contents of the notifications, which hence necessitates interference of this court, as sought for in this writ petition. The first respondent has filed a counter-affidavit, pointing out that, the liability to pay tax is very much there under the statute and it was only by virtue of the exemption given as per exhibits P2 and P3 notifications, that the petitioner could put forth the claim. When the petitioner claims for the benefit of the notifications, it has to be taken as it is, which in turn contains a specific clause, that the tax, if any already paid, will not be refunded. The petitioner having satisfied the tax, they are bound by the notification stipulating that the notification will not enable the assessee to have refund, once the tax is already paid. Reliance is also sought to be placed on the decision rendered by the Division Bench of this court in Kokkala Arecanut Commission Age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamined by the court. The learned Government Pleader submits that the decision rendered by the Division Bench of this court in Apar Ltd. v. Assistant Commissioner [2000] 8 KTR 363 (Ker) and that of the Supreme Court in Corporation Bank v. Saraswati Abharansala [2009] 19 VST 84 (SC) are quite distinguishable and are not applicable to the case in hand. He also submits that the tax paid by the petitioner has already been passed on to the customers by including the same while fixing the sale price, which is inclusive of such other amounts/expenses and the element of profit as well. The learned senior counsel for the petitioner submits that, if the rider in exhibits P2 and P3 notifications is let to stand as it is, without reading, understanding and applying the same as: "tax, if collected and paid shall not be refunded", it will lead to quite an anomalous situation, whereby persons like the petitioner, who are law-abiding citizens, who satisfied the liability without demur would stand discriminated from the rest of the lot, who chose to flout the law and evaded the payment. The law is not liable to be interpreted in favour of a wrong doer, submits the learned senior counsel. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid will not be refunded", was there as well, as incorporated in the concerned notification SRO No. 127/2000 dated February 5, 2000. The appellant therein represented the dealers in arecanut, who purchased the same locally and used to dispatch outside the State. Since, arecanut is a commodity taxable at the last purchase point, when it is purchased locally, the dealers are liable to pay tax on their purchase turnover. True, as per the provisions of the KGST Act, 1963, the dealer can collect the tax from the customer when the tax liability is on his purchase turnover. The rate of tax of arecanut up to December 31, 1999 was five per cent and from January 1, 2000, it was enhanced to eight per cent. Later, the Government in public interest, issued SRO No. 127 of 2000 dated February 5, 2000, reducing the rate of tax on arecanut from eight per cent to four per cent, giving retrospective effect from January 1, 2000, however, incorporating a stipulation that the "tax, if any paid, will not be refunded" . It was contended by the appellant that there was absolutely no rationale in the above stipulation. When an honest dealer remits the tax due on his purchase turnover in time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r clause, the word "collected" occurring the first clause, when that clause did not warrant such an interpretation. Thus interference was declined in the appeal and the contention of the assessee was turned down, answering the position in favour of the Revenue. With regard to the law laid by the Supreme Court in Saraswati Abharansala's [2009] 19 VST 84 (SC), it was a case, where the first respondentdealer in bullion gold purchased gold from the appellant-bank during the period from April 6, 1999 to December 10, 1999 and paid the sales tax at the prevailing rate of one per cent and the amount collected by the bank/ seller as sales tax was duly remitted with the Sales Tax Department. Subsequently, the State of Kerala, as per Notification SRO 1075/99 dated December 27, 1999, reduced the rate of sales tax from one per cent to % per cent, which was given retrospective effect from April 1, 1999. In view of the said notification, the first respondent before the Supreme Court (Saraswati Abharansala [2009] 19 VST 84 (SC)) put forth a claim before the appellant bank to refund the excess collection amounting to ₹ 20,97,763.50 with interest, which made the appellant bank t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss amount of tax collected by it to the purchasers. True, the apex court observed that, the statute should not be construed in such a manner, so as to encourage the defaulter and discourage those who abide by law. But, the said observation has to be read and understood with reference to the context. The law that was being considered was with reference to levy at the point of sale and the benefit of the reduction of the rate of tax for the period in question, was being claimed/agitated by both the sides, the seller-bank as well as the purchaser-Abharansala, to whom the liability was passed over. Unlike this, in the instant case, the liability is in respect of "purchase tax" levied, being at the last point of purchase in the State, which does not contemplate any passing over of such liability to the customers, in view of the mandate under section 22(2)(b). The dealer was liable to satisfy the tax irrespective of any chance to have it passed over to the customer, which in turn was satisfied by the petitioner herein. The notification issued much later by the Government, considering the public interest so to do, providing exemption and more as a matter of "policy", ..... X X X X Extracts X X X X X X X X Extracts X X X X
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