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TMI Blog2018 (7) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of tax on rice finding that the petitioner is an exempted unit, which is not liable to pay tax to the State. The fact cannot be denied that in case the petitioner being an exempted unit collects tax on sale, he shall not be entitled to retain the same as on the principle of unjust enrichment, the same may have to be deposited with the State. The price of levy rice fixed by the Government of India, at which the petitioner had supplied rice to the Corporation, includes the component of tax on rice, he will not be entitled to claim the same from the Corporation being a unit exempted from payment of sales tax - Petition dismissed - decided against petitioner. - CWP No. 21043 of 2008 (O&M) - - - Dated:- 12-7-2018 - Mr. Rajesh Bindal And Mr. Amit Rawal, JJ. For The Petitioner : Mr. Kashmiri Lal Goyal, Senior Advocate with Mr. Umang Goyal, Advocate For The Respondents : Mr. Akshay Bhan, Senior Advocate with Mr. Abhishek Sanghi, Advocate ORDER Rajesh Bindal, J. 1. This order will dispose of bunch of eight writ petitions bearing CWP No. 21043, 21137, 21141, 21292, 21314, 21334, 21335 and 21336 of 2008, as common questions of law and facts are invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2008 by the Corporation stating that as the petitioner is enjoying the benefit of exemption from payment of sales tax, the amount being not payable to the Sales Tax Department, he is entitled to receive that amount. The same has been done on the instruction of the Headquarters. Copy of the letter dated 11.5.2006 from the Headquarter was attached. The aforesaid two communications are under challenge in the present writ petition. 7. The contention raised by learned counsel for the petitioner is that mere mentioning of the fact that the amount of sale price being paid for levy rice is inclusive of tax would not mean that any amount of tax is included therein. In support of the arguments, reliance was placed upon judgment of Hon'ble the Supreme Court in Deputy Commissioner of Commercial Taxes (Vigilance) vs M/s Hindustan Lever Limited 2016 (13) SCC 28. Once this presumption cannot be raised by the Corporation, there is no question of deduction of any amount on account of the tax component from the total sale price. The price paid is the total sale price fixed for the levy rice, without there being any details. The petitioner did not have any choice but to sell rice to the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Hence, to claim that the price so fixed does not include the element of tax, is totally misconceived. 12. He further submitted that judgment in M/s Hindustan Lever Limited' s case (supra), is distinguishable, as in that case the price was fixed by the seller himself and it was able to make out a case that the price did not include the element of tax. In that case certain goods were manufactured by an exempted unit, whereas similar goods by another unit of the company where tax was leviable. The sale price of the goods was to be kept uniform throughout the country, otherwise there would have been anomalous position. It was under those circumstances that while explaining the term 'inclusive of all taxes', Hon'ble the Supreme Court found that element of tax was not included in the case where the goods were manufactured by the exempted unit. The facts in the case in hand are entirely different. Here the buyer has fixed the price, where complete details are there, which specifically includes element of tax. Once the petitioner is exempted from payment of tax, he cannot be permitted to claim the same from the Corporation. Benefit of any exemption from payment of ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from a calculation sheet annexed by the Corporation with the reply. The same is extracted below:- PUNJAB- COSTING SHEET OF LEVY RICE ( Rice-Raw) ( Rice-Parboiled) COMMON GRADE 'A' COMMON GRADE 'A' COMPONENTS 2005-06 2005-06 2005-06 2005-06 Minimum Support Price of Paddy Statutory charges 570.00 600.00 570.00 600.00 i) Purchase Tax/ Trade Tax/ VAT @ 4% Market Fee @ 2% 11.40 12.00 11.40 12.00 iv) Arhatia Commission/ Dami @ 2.5% R.D. Cess @ 2% 14.25 15.00 14.25 15.00 R.D. Cess @ 2% 11.40 12.00 11.40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Any amount collected by a dealer as tax, if not leviable cannot be retained by him. 19. While making the payment of the amount of rice supplied by the petitioner to the Corporation, out of the bills so raised, while calculating the value as per the price fixed by the Government of India, the Corporation had deducted the element of tax on rice finding that the petitioner is an exempted unit, which is not liable to pay tax to the State. The fact cannot be denied that in case the petitioner being an exempted unit collects tax on sale, he shall not be entitled to retain the same as on the principle of unjust enrichment, the same may have to be deposited with the State. But here the claim made by the petitioner is that he is entitled to receive the amount of tax for sale of rice and deposit thereof with the Department of Excise and Taxation is a matter between the petitioner and the department. The Corporation has nothing to do with that. However, the argument does not appeal to us. Instead of generating more litigation or reopen issues, which already stood settled, we are deciding the matter on a broader principle as to whether the petitioner is entitled to recover the tax from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aryana Rice Procurement Levy Order, 1985 (hereinafter referred to as the Levy Order ), the appellants/dealers had collected purchase tax on paddy from the government or its agencies alongwith procurement price of levy fixed under the said Levy Order and if so, what would be the effect of such collection. 24. The note appended to the levy order fixing the price of rice therein, is extracted below:- Note (i): The above prices of rice are for net rate of naked grains inclusive of purchase tax (emphasis added) and mandi charges of paddy and depreciation of gunny bags used for packing paddy but exclusive of cost of gunny bags and taxes, if any, after ex-mill stage of rice. 25. Hon'ble the Supreme Court while upholding the judgment of Division Bench of this Court on the issue opined that the procurement price includes the price of purchase tax. Relevant para thereof is extracted below:- We have already referred to the aforesaid note appended to the Notification dated October 17, 1996. The aforesaid note leaves no room for doubt that the assessees, while supplying rice to DFSC, collected purchase tax amongst other things by way of the procurement price. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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