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TMI Blog2015 (10) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... then it could not be said that he had charged any tax from the customers but if he had realized higher sale price on or after 26.6.2001, then the higher realization could be attributed to the tax charged from the customers. - dealer had not charged anything extra on sale of IMFL after the levy of tax thereon. Thus, on appreciation of evidence, it could not be concluded that the dealer had charged any tax from the customers. The finding recorded by the majority Members of the Tribunal is based on conjectures and surmises without there being any material on record to arrive at the conclusion that the assessee-appellant had charged tax on sale of IMFL in respect of stock as on 25.6.2001, which was sold during the period 26.6.2001 to 14.10.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded law under the Haryana VAT Act, 1973? (ii) Whether on the facts and circumstances of the case, the Ld. Tribunal was justified in upholding the order of Ld. Revisional Authority wherein he has raised the demand on account of undue enrichment despite the fact that the appellant did not charge any tax from its customers in the invoices? (iii) Whether on the facts and circumstances of the case, the Ld. Tribunal was justified in upholding the order of Ld. Revisional Authority even though he had no jurisdiction after the repeal of the Haryana General Sales Tax Act, 1973? 3. Put shortly, the facts necessary for adjudication of the instant appeal as narrated therein are that the appellant was engaged in the business of wholesale and retail p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nexure A-1) held the appellant entitled to refund of ₹ 76,36,377/-. Since the refund amount exceeded ₹ 10 lacs, the case was sent to the Excise and Taxation Commissioner for approval. After his approval, the amount was refunded to the appellant. However, after the expiry of more than four years, the Deputy Excise and Taxation Commissioner, Faridabad (East) issued a notice to the appellant to show cause as to why the assessment order be not revised and the refund made to the appellant be not recovered. The said show cause notice was duly replied by the appellant. The revisional authority vide order dated 1.5.2007 (Annexure A-2) revised the order by raising demand of ₹ 84,77,746/-. Feeling aggrieved, the appellant filed an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e counsel supported the order passed by the Tribunal and urged that it could not be said that the appellant had sold the liquor without charging the tax on the stock of IMFL on 25.6.2001 and, thus, the Tribunal was right in deciding the issue against the appellant. 6. The issue which arises for consideration in these appeals is whether there was unjust enrichment on the part of the appellant whereby it could be said that the appellant had collected the tax on sale of closing stock of liquor which was available on 25.6.2001 but was sold subsequently till 14.10.2001. 7. We find force in submissions of learned counsel for the appellant. The IMFL was tax free before 26.6.2001 and if the dealer had realized the same price for the sale of IMFL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2001, 11.8.2001 and 12.9.2001 in respect of IMFL sold to Gymkhana Club L- 12C, Faridabad, were examined by the Tribunal as has been noticed in the opinion of Sh. Yudhvir Singh, Member of the Tribunal. On 21.6.2001, only Peter Scot Whisky and Sandipiper Beer had been sold whose comparison of sale price and comparable brands when sold on subsequent dates was as under:- Brand IMFL Date Gross Price per case Rebate Peter Scot Whisky 21.6.2001 4800 20% 11.8.2001 4800 20% 12.9.2001 4800 20% Sandpiper Beer 21.6.2001 600 20% KF Beer 13.7.2001 600 20% Sandpiper Beer 12.9.2001 600 20% KF Beer 12.9.2001 600 20% 9. A perusal of the above shows that the dealer had not charged anything extra on sale of IMFL after the levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of fact which would not give rise to a substantive question of law. Therefore, the appeal does not warrant admission." 11. The Tribunal had relied upon decision of this Court in M/s Jatinder Singh & Co.'s case (supra) to adjudicate the issue against the appellant. It would be relevant to reproduce the findings of fact recorded therein on the basis of which the writ petition was dismissed. It reads thus:- "7. Respondent No.2 i.e. the Excise and Taxation Commissioner, Haryana in its impugned order dated 13.6.2005 has recorded finding of fact that the petitioners have sold IMFL to its customers at an enhanced rate. It was further observed in the impugned order that tax paid stock was sold by L-1 licencee through its retail counters of L-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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