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TMI Blog2019 (9) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of amount cannot be directed by this Court. This Court is required to bear in mind that by applying the general principles of refund the case of petitioner could not be examined. This Court in exercise of its jurisdiction under Article 226 of the Constitution ought not to revisit the very same circumstances and grant the prayers as made - Petition dismissed. - WP(C). No. 20748 OF 2017(P) - - - Dated:- 3-9-2019 - MR S. V. BHATTI, J. For The PETITIONER : ADVS. SRI. SHAJI THOMAS, SRI. G. SHIVADAS AND SRI. H. KIRAN For The RESPONDENT : BY GOVERNMENT PLEADER JUDGMENT Heard Sri.G.Shivdas, anlearned Senior Advocate for petitioner and Sri.C.E. Unnikrishnan, anlearned Special Government Pleader, anfor respondents. 2. The petitioner prays for writ of certiorari to call for the records leading up to and inclusive of Ext.P1 letter dated 02.11.2016, anquash Ext.P1 and hold that petitioner is eligible for refund of extra amount deposited during the pendency of appellate proceedings filed against orders of assessment for the Assessment Years 2005-06 to 2014-15. The petitioner prays for cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... successful before the Deputy Commissioner (Appeals) and filed appeal before the Kerala Value Added Tax Appellate Tribunal in T.A.(VAT) Nos.272 of 2008 and 314 of 2008. The Tribunal allowed the appeals filed by the petitioner. The State carried the matter to this Court in O.T.Rev. Nos.13 and 16 of 2009. It is contextual to refer to the filing of writ petition by M/s. M.P.Agencies against the clarification Order No.C7/02/07/CT dated 15.10.2007 in O.T.A. No.9 of 2007. A Division Bench of this Court, anvide judgment dated 06.04.2009 dismissed the appeal and the decision is reported in M/s.M.P.Agencies vs. State of Kerala (2010) 18 KTR 82 (Ker) . On 12.04.2011, anvide Ext.P2 order, anO.T.Rev. Nos.13 and 16 of 2009 filed by petitioner were disposed of. The effect of Ext.P2 order is that the point of law raised in O.T.Rev. No.13 of 2009 is answered in favour of the State/Revenue and against the assessee, anand the penalty considered in O.T.Rev. No.16 of 2009 is answered in favour of assessee/petitioner herein. The petitioner and M/s.M.P. Agencies challenged the order in Ext.P2 and the judgment in M/s.M.P. Agencies in Civil Appeal No.1440 of 2010. The Apex Court through Ext.P3 judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But that is not the lis here, anfor the Revenue has included the goods in the residuary Entry 103 and the said entry, anby no stretch of reasoning, ancan be made applicable. 40. The High Court, anwe are disposed to think, anhas missed the issue in entirety and, antherefore, anwe are obliged to dislodge the impugned judgment and orders. However, anif any assessee-appellant has paid the amount of VAT to the State Government, anthey will not be entitled to get any refund of the said amount. 41. Consequently, anthe appeals are allowed and the judgment and orders are set aside with the stipulation that none of the assesseeappellant would be entitled to refund. ( emphasis added) 5. The judgment in Ext.P3 determined the applicable VAT on the products as 4%/5%. The respondents issued revised assessment orders in Ext.P12 for all the assessment years. One of the orders is referred to in this judgment to understand and also appreciate the purport and purpose of Ext.P13 representation. The respondents through all the assessment orders in Ext.P12 series have noticed that excess amount is collected from the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice already issued is modified to the above extent. 6. The petitioner submitted Ext.P13 representation requesting for refund of amount deposited over and above the applicable VAT during the pendency of assessment proceedings for the years 2005-06 to 2012-13 or while the legal statutory appeals were pending. The respondent considered representations dated 22.08.2016 and 22.09.2016 and issued reply in Ext.P1 which reads as follows: Attention is invited to the above reference. As per the Supreme Court order dated 18.03.2015, anthe amount paid to Government is not to be refunded. Also the interlocutory application filed by M/s.M.P. Agencies has been rejected by the Honourable Supreme Court. In this circumstances this department cannot refund the excess amount of tax paid. 7. The petitioner tried to convince the respondents to re-examine the issue of refund by filling representation dated 05.06.2017 (Ext.P13). The respondents since are not moving in the matter, anthe present writ petition is filed for the reliefs referred to above. 8. The respondents contest the writ prayer in all fours. The first and foremos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r head payable by the petitioner. The petitioner from the beginning has been contending that the petitioner is not passing on the difference of tax liability to customers and the difference of tax amount is paid by the petitioner, anincurred avoidable liability and the excess amount deposited is akin to deposit during the pendency of the proceedings before statutory authorities, anthis Court or Supreme Court. The respondents/State cannot and could not receive any amount over and above than what the law authorizes in this behalf and also over and above than what is declared by the Supreme Court in Ext.P3. In nutshell, anit is contended that the petitioner is entitled to refund of amount paid over and above 4%/5% to the respondents. He refers to and relies on the decisions reported in Ahmedabad Manufacturing Calico Printing Co.Ltd. Vs. Workmen (1981) 2 SCC 663 , an Indian Oil Corporation Ltd. Vs. State of Bihar 1987 (27) E.L.T. 578 (S.C) , an Indian Oil Corporation Vs. Municipal Corporation, anJullundhar (1993) 1 SCC 333 and Gajraj Singh Vs. State of U.P. ( 2001) 5 SCC 762 firstly to bring home the principle on which refund is granted and when the claim for refund is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contends that paragraph 40 deals with the amount of VAT paid to the State Government and what was paid at that point of time was Value Added Tax and even by plainly reading paragraph 40, anthe petitioner is not entitled to refund. He further contends that paragraph 41 of Ext.P3 judgment allowed Civil Appeal No.1440 of 2010 with the stipulation that none of the assessee/appellant could be entitled to refund. It means the restriction is on the assessee/appellant and the emphasis is on refund. Paragraph 41 does not restrict refund to VAT, anbut, anto any refund i.e., anexcess VAT collected or paid by the petitioner. The stipulation in paragraph 41 of Ext.P3 is against the individual assessee/appellant i.e., anfrom refund. Therefore, anno assessee/appellant is entitled even to file an application for refund in terms of Ext.P3 judgment. This position once again is reiterated by Ext.P4 order of the Apex Court. The Court in exercise of its jurisdiction under Article 226 of the Constitution cannot or could not add either the suffix or prefix to the words amount of VAT , an assessee/appellant , an refund etc. The judgment in Ext.P3 and Ext.P4 order are binding on the parties and there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt paid by petitioner. This Court is required to bear in mind that by applying the general principles of refund the case of petitioner could not be examined. The petitioner is laying its claim only by referring to Ext.P3 judgment with specific reference to the operative portion in paragraphs 40 and 41 already excerpted above. The issue is examined by appreciating Exhibits P3 and P4 and none else. 15. Yet another important aspect of the matter is that the petitioner and M/s.M.P.Agencies filed applications for modification/ clarification of Ext.P3 judgment. The stand taken in these I.As is excerpted for immediate reference: 3. During the disputed period, anthe Applicant sold the products to its distributors such as M/s.M.P. Agencies, anby charging VAT @ 4%/5% as applicable during the relevant years. The Applicant filed monthly returns as per the Act and deposited the tax collected with the State Government. ... 7. It is submitted that during the pendency of appellate proceedings before the lower courts for the disputed period, anthe Applicant has made deposits against the demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the demand of differential tax on the Applicant for the disputed period. Consequently, anthe retention of amount paid as deposit collected by the department and under the protest to the State Government, anwhich is not collected from the dealers, anwould be illegal and in violation of Article 265 of the Constitution of India. ( emphasis added) 11. It is a settled law that the amounts deposited by a dealer from its own funds without passing the burden to the customers does not attract principles of unjust enrichment, anand hence cannot be forfeited to the Government. 12. In view of the aforesaid, anit is humbly prayed that Para 40 and 41 of the impugned judgment be suitably modified and appropriate directions be issued to the State Government for refund of all the amount recovered by the department in excess of explicable rate of VAT as decided by this Hon'ble Court to the Applicant and subsequent distributors and stockist. ( emphasis added) It is respectfully prayed that this Hon'ble Court may be pleaded to a) Clarify on the issues rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns is not warranted. The word rejected is understood to mean to refuse to believe, anaccept, anor consider (something ). Upon due consideration of the undisputed circumstances the prayer for refund of difference of amount cannot be directed by this Court. 18. Ext.P1 is a communication addressed by respondent no.2 to petitioner. Ext.P1 merely adverts to the consequence of Ext.P3 and Ext.P4, anjudgment and order respectively. The second respondent intimates through Ext.P1 that the Department cannot refund the difference of amount paid. The petitioner could not point out an omission or infirmity by reading Ext.P1 except contending the entitlement of petitioner is dependent on appreciation of Exts.P3 and P4, anjudgment and order respectively. The understanding of Exts.P3 and P4 in any way than more than what the Apex Court has held in this behalf it virtually amounts to adding additional expression of the final adjudication by the Apex Court. 19. Under these circumstances, anthis Court in exercise of its jurisdiction under Article 226 of the Constitution ought not to revisit the very same circumstances and grant the prayers as made. The said course if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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