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TMI Blog2020 (3) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... months from the date of receipt of copy of the writ of this judgment. - R/SPECIAL CIVIL APPLICATION NO. 18715 of 2018 With R/SPECIAL CIVIL APPLICATION NO. 14975 of 2019 - - - Dated:- 4-3-2020 - MR. J.B. PARDIWALA AND MR. BHARGAV D. KARIA JJ. Appearance: MR SAURABH SOPARKAR, SR. COUNSEL with UCHIT N SHETH(7336) for the Petitioner(s) No. 1,2 MR CHINTAN DAVE, ASSISTANT GOVERNMENT PLEADER(1) for the Respondent(s) No. 1,2 MR RASESH H PARIKH(3862) for the Respondent(s) No. 3 MR. HEMANG H PARIKH(2628) for the Respondent(s) No. 3 ORAL JUDGMENT (PER : MR. BHARGAV D. KARIA) 1. Rule, returnable forthwith. Mr.Chintan Dave, the learned Assistant Government Pleader waives service of Notice of Rule for and on behalf of the respondent Nos.1 and 2. Mr.Rasesh H. Parikh, the learned advocate waives service of Notice of Rule for and on behalf of the respondent No.3. 2. Having regard to the controversy in a narrow compass, with the consent of the parties, the matter is taken up for hearing. 3. By these petitions under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs: A. This Hon'ble Court may be pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 (for short 'the Act, 2017'. 6.3. The petitioners require Liquefied Natural Gas (for short LNG ) mainly for heating purpose in the dipped fabric plant for manufacturing nylon tyre cord fabric. The petitioners therefore, entered into an agreement with Indian Oil Corporation Ltd. (for short IOCL )-respondent No.3 on 07.10.2016 for supply of LNG from its Dahej terminal located in the State of Gujarat. 6.4. It is the case of the petitioners that prior to coming into force of Goods and Service Tax regime in India, LNG was taxable under the Act 2003 at the rate of 15%, the IOCL-respondent No.3 charged tax at the rate of 15% on sales of LNG to the petitioners. The petitioners under the VAT Act were entitled to claim input tax credit of the tax so charged by the IOCL after reduction at the rate of 4% under Section 11(3) (b)(iii) of the Act 2003. 6.5. According to the petitioners, after coming into force of GST w.e.f. 01.07.2017, the goods manufactured by the petitioners were covered under the GST regime, but LNG continued to be taxed under the Act 2003 at the rate of 15%. 6.6. The petitioners were therefore, unable to take input tax credit on the tax paid to the IO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring, considering the facts that the condition no.2 does not override any of the Central statute or central levy of tax. The present order does not overreach or breach the requirements of Central Sales Tax Act, 1963 as contended by the petitioner. 10. I say and submit that it appears that confusion or controversy is basically with reference to sales, where C-form declaration are applicable in view of Section 8 of the Central Sales Tax Act, 1963. I say that on the above issue, IOCL had sought clarification for the determination of issue before the State Authorities and the State Tax Department vide its letter no.B.No.101 dated 31.08.2018 has already conveyed to Finance Department by Legal Branch of State Tax Department. The said communication dated 31.08.2018 opines that such remission order does not overreach Central Sales Tax Act, 1963 or Section 8 of the said Act and if C-Form are furnished for the inter State, such sales would be governed by Central Tax Act, 1963, however, sales where C-Form is not furnished, the leviable tax would be the actual payable tax and in such sales, no remission would be permitted. Therefore, in view of said communication dated 31.08.2018 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form declarations in respect of such transactions have been duly furnished and the Rajasthan High Court has specifically directed the concerned authorities to refund the excess tax within twelve weeks of the refund claim. Reference was made to section 11B of the Central Excise Act, 1944 and more particularly to clause (e) of sub-section (2) thereof, which provides that the amount of duty of excise and interest, if any shall instead of being credited to the fund be paid to the applicant if such amount is relatable to the duty of excise and interest, if any, paid on such duty borne by the buyer, if he has not passed on the incidence of such duty and interest, if any, paid on such duty to any other person. 7.7. The submissions of the State are recorded in para 12 of the aforesaid judgment, which read thus : 12. Opposing the petitions, Ms. Maithili Mehta, learned Assistant Government Pleader, submitted that while the respondents are not disputing the fact that the amount collected towards tax in the absence of C form declarations is required to be refunded if the C form declarations are furnished; however, such refund can be granted to the seller - Reliance Industries Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued C form declarations in respect of the transactions in question. The respondent authorities do not dispute that against the C form declarations, the tax collected from the petitioners and deposited by Reliance Industries Limited is required to be refunded. The sole refrain of the respondent authorities is that such refund can be made to the seller Reliance Industries Limited after its assessment for the period in question is concluded and not to the petitioners who are not registered as dealers in Gujarat. 15. In the opinion of this court, while adopting the above stand, the respondents have failed to take into consideration the fact that insofar as Reliance Industries Limited is concerned, it has already collected the tax from the petitioners, and hence, if Reliance Industries Limited seeks refund of the amount against the C form declarations, it would not be entitled to such refund as such claim would be hit by the principles of unjust enrichment. As held by the Supreme Court in State of Madhya Pradesh v. Vyankatlal (supra), only the persons on whom lay the ultimate burden to pay the amount would be entitled to get a refund of the same. The petitioners having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f purchases, tax charged and submission of C forms against such purchases as well as copy of sample invoice, etc. Thus, the petitioners had duly complied with the direction issued by the Rajasthan High Court and in case the respondents required the petitioners to furnish any other details, it was always open for them to call upon the petitioners to furnish the same. However, the respondent authorities have taken a stand that since it is Reliance Industries Limited which has deposited the tax, such refund application has to be made by it and upon refund being made to Reliance Industries Limited, it can pay the same to the petitioner. However, as noted earlier, Reliance Industries Limited cannot make an application for refund inasmuch as such claim would be barred by the principle of unjust enrichment. Moreover, as stated by the respondents, in the case of Reliance Industries Limited, the refund claim would be processed during the course of its assessment for the period in question, which may take years together and in the meanwhile the petitioners would be deprived of such amount. Moreover, it may be that while processing the refund claim during the course of Reliance Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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