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TMI Blog2016 (7) TMI 1427X X X X Extracts X X X X X X X X Extracts X X X X ..... arise - petition allowed. - SPECIAL CIVIL APPLICATION NO. 7918 of 2000 - - - Dated:- 21-7-2016 - Mr.K.S. Jhaveri and Mr. G.R.Udhwani, JJ. Mr Rakesh Gupta with Mr Vivan Shah, Advocate for M/s Trivedi Gupta, Advocate for the Petitioner(s) No. 1 - 2 Ms Maithili Mehta, AGP for the Respondent(s) No. 1 3 JUDGMENT By way of this petition, the petitioner has challenged order No.STO/FAC-06/PENALTY ORDER/ 2000-2001/ B/964 as well as Order No.STO/FAC-06/PENALTY ORDER/2000-01/B/965 both dated 6.6.2000 whereby the penalty was imposed under Section 46 (1) of the Gujarat Sales Tax Act, 1969 for the assessment year 1986-87. 2. The facts of the case are as under:- 2.1 Oil Natural Gas Corporation Limited (herein after referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner was deposited with the Sales Tax Department. Therefore, such a collection did not fall within the purview of Section 56 (1) of the Act and the petitioner could not be held liable for penalty under the provisions of Section 46 of the Act. The fact that the petitioner was under a bona fide belief that the tax was not payable under the provisions of the Act is further substantiated from an order dated 8.3.1989 passed by Deputy Commissioner of Sales Tax (Legal) under Section 62 of the Act, whereby it was held that Gujarat Sales Tax was leviable on such transactions. However, the Gujarat Sales Tax Tribunal in an appeal filed against the aforesaid order dated 8.3.1989 held that sales tax under the Act could not be levied on such t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent submitted that the assessee had already collected the sales tax from KRIBHCO, therefore, they cannot be allowed to withhold the amount and they are required to make the payment. She further submitted that this will amount to unjust enrichment and it is not permissible under the law. 5. We have heard, Mr.Gupta, learned advocate for the petitioner and Ms.Mehta, learned AGP for the respondent. We have also gone through the material on record and perused the impugned orders. Provisions of Sections 46 and 56 (1) of the GST Act, which are relevant for the purpose of deciding present petition are quoted below:- 46. Imposition of penalty for contravening certain provisions: (1) If any person collects any amount by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of the opponent that transaction of sale evidenced by Bill No. BOP A/4 dated November 19, 1985 of Oil Natural Gas Commission is not a transaction of sale effected by the opponent within the State of Gujarat and it is not liable to tax as per entry 47 of Schedule II Part A to the Gujarat Sales Tax Act, 1969? 3. Learned Counsel for the respondent has submitted that the issue raised in this Appeal is squarely covered by the following decisions :- a) Madras Marine and Co. v. State of Madras reported in AIR 1986 Supreme Court 1760 ; b ) Larsen Tourbo Ltd. Anr. v. Union of India Others reported in 2012 (1) G.L.H. 55 and c) BG Exploration and Production India Limited and Another v. State of Gujarat throug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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