9911796707
TMI Blog2022 (2) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... h refund the tax amount of ₹ 1,87,69,739/- under the C.S.T. Act collected from the writ applicant. Let this entire exercise be undertaken and completed within a period of four weeks from the date of receipt of the writ of this order - Application allowed. - R/Special Civil Application No. 467 of 2022 - - - Dated:- 9-2-2022 - Honourable Mr. Justice J.B.Pardiwala And Honourable Ms. Justice Nisha M. Thakore For the Petitioner(s) : Mr Uchit N Sheth For the Respondents : Mr Utkarsh Sharma, AGP, Notice Served ORAL ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1 By this writ application under Article 226 of the Constitution of India, the writ applicant a Public Limited Company has prayed for the following reliefs: A. This Hon ble Court may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate to forthwith grant refund of tax amount of ₹ 1,87,69,739 under the CST Act collected from the petitioner and deposited by the seller along with appropriate interest on such refund amount; B. Pending notice, admission and final hearing of this petition, this Hon ble Court may be pleased to direct the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the CST Act. The purchase of the said goods for purposes of re-sale, use in the manufacture or processing of goods for sale, in the telecommunications network or mining or in generation or distribution of electricity or any other form of power would qualify the purchaser for registration under Section 7 (2) of the CST Act. Section 7 (2) does not stipulate that only a dealer liable to pay tax under the sales tax law of the appropriate State in respect of any particular goods is entitled to apply for registration. Nor does section 7 (2) stipulate that an application for registration can be made or 'C' Form can be issued only in respect of the sale of the same goods prescribed in the course of an inter-state sale. A dealer liable to pay tax under the sales tax law of the appropriate State in respect of any goods would be covered by Section 7 (2) of the Act. 21.1. While allowing the writ petition, it was held that the respondents were liable to issue 'C' forms in respect of the natural gas purchased by the petitioner from Gujarat and used in the generation or distribution of electricity at its power plants in Haryana. 22. As already noticed above, before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has statutory remedy of appeal. When the decision of the Punjab and Haryana High Court in the case Capro Power Limited Vs. State of Haryana, CWP No.29437 of 2017, decided on 28.03.2018, was brought to her notice, she submits that the said case may not be applicable to the facts of the present case. She has drawn our attention to paragraph 27 of the said judgment to contend that in that case the registration certificate of the petitioner was not cancelled. 4. Issue notice, returnable four weeks. 5. Parties may file affidavit by the returnable date. 6. Petitioner was granted certificate of registration by the State of Maharashtra under the Central Sales Tax (Registration and Turnover) Rules, 1957 whereby petitioner was registered as a dealer under section 7(1) / 7(2) of the Central Sales Tax Act, 1956. By the impugned order dated 05.03.2020, the said registration certificate has been cancelled. Ground for cancellation of registration certificate is that petitioner had not sold any of the products covered by the Maharashtra Value Added Tax Act, 2002 during the relevant period. Consequently, the certificate was cancelled with effect from 01.07.2017. Consequence of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue whether the writ applicant is registered with the State of Gujarat or not is no longer res integra in view of the pronouncement of this very High Court in the case of J. K. Cement Ltd vs. State of Gujarat decided on 18th December 2019, wherein this Court held as under: 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustries Limited would not be entitled to claim any such refund. Rule is made absolute accordingly, with no order as to costs. 7 The aforesaid judgement of this High Court was challenged by the State of Gujarat before the Supreme Court by filing the Special Leave to Appeal (C) No.2279 2280 of 2021. The Special Leave to Appeal came to be dismissed by the Supreme Court vide order dated 10th February 2021 in the following terms: 1 The order of the High Court which is impugned in the Special Leave Petitions indicates the factual position that: (i) The respondent was denied a C form in respect of an inter- State sale as a result of which a higher rate of tax was charged; (ii) The respondent moved the Rajasthan High Court in a writ petition in which interim directions were initially issued on 20 February 2018 and subsequently on 18 May 2018 it was held that the refusal to issue a C form was contrary to law; (iii) The High Court upheld the entitlement of the respondent, in consequence, to seek a refund; and (iv) The State, as a matter of fact, has not disputed the refund which is due and payable. 2 Ms Aastha Mehta, learned counsel appearing on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
