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TMI Blog2020 (3) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2019. 3. The petitioner is a public limited company duly incorporated under the provisions of the Companies Act, 1956. The petitioner is engaged in the manufacture and sale of cement and is also inter alia engaged in mining activity. The petitioner is duly registered under the CST Act and in the registration certificate under the CST Act "High and Light Speed Diesel Oil" for use in mining is duly incorporated. 4. The petitioner purchased diesel from the refinery of M/s. Reliance Industries Ltd. located in the State of Gujarat for use in mining activity. Prior to the introduction of the goods and services tax regime, the authorities of the State of Rajasthan under the CST Act duly issued C form declarations to the petitioner enabling the petitioner to purchase diesel at concessional rate of tax from the seller. 5. The goods and services tax regime was introduced in the country with effect from 1.7.2017, which encompassed all goods except six commodities viz. crude oil, petrol, diesel, aviation turbine fuel, natural gas and alcoholic liquor. These six commodities continued to be governed by the respective State value added tax laws for the transactions within the State as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who collected the excess tax. The concerned authorities were directed to process the refund claims within twelve weeks from the date of refund claim. 9. On the basis of the judgment of the Rajasthan High Court, the seller - Reliance Industries Limited duly intimated the respondent authorities of the State of Gujarat regarding the issue as well as the direction given by the High Court to refund the excess amount collected by the concerned authorities and informed them that its various buyers from the State of Rajasthan would approach the authorities for refund. The writ petition filed by the petitioner before the Rajasthan High Court came to be allowed by an order dated 18.2.2019 by following the earlier judgment dated 18.5.2018. Pursuant to the said decision, the petitioner addressed a letter to its seller on 1.3.2019, informing it about the order passed in its case and requested for necessary action and was informed by the seller that it had already informed the jurisdictional authority regarding the decision of the Rajasthan High Court requiring refund of excess tax collected by the concerned authority and, therefore, the petitioner may approach the concerned authority for ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents had not to pay the amount from their coffers. The burden of paying the amount in question was transferred by the respondents to the purchasers and, therefore, they were not entitled to get a refund. Only the persons on whom lay the ultimate burden to pay the amount would be entitled to get a refund of the same. The amount deposited towards the Fund was to be utilised for the development of sugarcane. If it is not possible to identify the persons on whom had the burden been placed for payment towards the Fund, the amount of the Fund can be utilised by the Government for the purpose for which the Fund Was created, namely, development of sugarcane. There is no question of refunding the amount to the respondents who had not eventually paid the amount towards the Fund. Doing so would virtually amount to allow the respondents unjust enrichment." It was submitted that there is no bar that the petitioners cannot be granted the refund though the petitioners are the buyers. It was submitted that just like no statutory provisions are required for applying the principle of unjust enrichment, correspondingly no provision is required for refund to the person who has borne the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State that a finding regarding the invalidity of a levy need not automatically result in a direction for a refund of all collections thereof made earlier. The declaration regarding the invalidity of a provision and the determination of the relief that should be granted in consequence thereof are two different things and, in the latter sphere, the Court has, and must be held to have, a certain amount of discretion. It is well-settled proposition that it is open to the Court to grant, mould or restrict the relief in a manner most appropriate to the situation before it in such a way as to advance the interests of justice." In the instant case the octroi duty paid by the petitioner Company would naturally have been passed on to the consumers. Therefore there is no justification to claim the same at this distance of time and the court in its discretion can reject the same. For the above reasons, this Special Leave Petition is dismissed with costs." It was submitted that this court which is exercising writ jurisdiction may mould the relief in an appropriate manner, but should ensure that the order passed by the Rajasthan High Court is duly complied with. 11.5 Reference was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have no objection, if the amount is directly paid to the said organization. Ignoring such representation of the petitioner, the Assistant Commissioner of Service Tax, Ajmer held that this was a case of unjust enrichment. If he was of the opinion that the petitioner was not the correct person who can ask for refund, he could have stated so in the order. This would have enabled the petitioner to point out to the CPWD the correct reason for not being able to claim refund of the service tax. Instead, the Assistant Commissioner wrongly applied the principle of unjust enrichment and ordered that the service tax shall be deposited with the Consumer Welfare Fund." It was submitted that in the facts of the present case, the seller viz. Reliance Industries Limited has informed the respondents that the buyers would claim the refund. 11.6 Reliance was also placed upon the decision of the Madhya Pradesh High Court in the case of Hotline CPT Ltd. v. State of M.P. & Ors., [2013]61 VST 367 (MP). In the facts of the said case, the petitioner had paid tax to the respondents No.5 and 6 on account of purchase of diesel for its in-house consumption and respondents No.5 and 6 had paid the said tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities would not be in a position to directly grant refund to the petitioners as it is Reliance Industries Limited who has deposited the tax qua the said transactions. It was submitted that the respondent authorities will process the refund in accordance with law on completion of the assessment proceedings of Reliance Industries Limited for the assessment years in question and grant refund thereafter, which may then be paid over to the petitioners. It was urged that at this stage no cause of action arises in favour of the petitioners and that the petition being devoid of merits deserves to be dismissed. 13. In rejoinder, Mr. Uchit Sheth, learned advocate for the petitioners invited the attention to the provisions of subsection (3) of section 31 of the GVAT Act, to submit that the seller - Reliance Industries Limited would not be able to claim refund as it has not borne the incidence of tax. It was submitted that there is no statutory bar against giving the refund to the purchaser and that the stand adopted by the respondents flies on the face of the decision of the Rajasthan High Court. It was submitted that Reliance Industries Limited cannot claim refund as the burden has al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt would be entitled to get a refund of the same. The petitioners having borne the ultimate burden in this case, it is only they who would be entitled to refund of the same. 16.Besides the Rajasthan High Court in the petitioners' own case has held that the authorities at Rajasthan were liable to issue 'C' forms in respect of high speed diesel procured for mining purpose through interstate trade. The court has further held that in the event of the petitioners having had to pay any amount on account of the respondents' wrongful refusal to issue 'C' forms, the petitioners shall be entitled to refund and/or adjustment from the concerned authorities who had collected excess tax. The court further directed the concerned authorities to process such claim within twelve weeks of the same being made by the petitioners in writing and the petitioners furnishing the requisite documents/forms. 17. In the present case, in the absence of 'C' forms having been issued by the Rajasthan authorities, the respondent authorities have collected excess tax from the seller - Reliance Industries Limited, who in turn has collected the same from the petitioners. Therefore, in terms of the above order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim during the course of Reliance Industries Limited's assessment, the respondents may even adjust the refund amount against its dues. Thus, the stand of the respondents that Reliance Industries Limited should file the refund claim and then pay the amount so refunded to the petitioners is neither legally tenable nor is it practically workable. 19. In the opinion of this court, in the light of the clear directions issued by the Rajasthan High Court in the judgment and order referred to hereinabove, which the respondent authorities are bound to comply with, upon the petitioners making applications for refund along with the requisite documents, the respondents were duty bound to process such claim within a period of twelve weeks from the date of such application. The stand adopted by the respondents that the refund can be made to only to Reliance Industries Limited flies in the face of the order passed by the Rajasthan High Court as well as the above-referred decisions on which reliance has been placed by the learned advocate for the petitioners and is nothing but a purely hyper technical stand adopted by them. Once Reliance Industries Limited has, in clear terms, writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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