9911796707
TMI Blog2014 (8) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... a final product is a question which arises for consideration in these appeals . In substance, this Court held that a person who passes on the burden of tax to some other person, either directly or indirectly is not entitled to claim the refund of tax, the levy and/or collection of which by the State is declared to be illegal or unconstitutional - the existence or otherwise of such a provision makes no difference for the correctness of the above stated principle of law Any person carrying on the activity of manufacture of goods utilising some raw material which had already suffered some tax would normally include both the tax component and the cost of such raw material into the cost of the final product and pass on the same to the consumer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced with a situation where they had to refund huge amounts of illegally collected taxes. In order to salvage the situation, the Parliament enacted the Cess and other Taxes on Minerals (Validation) Act, 1992 (hereinafter being referred to as the Validation Act ). 5. The constitutionality of the said Validation Act itself once again came to be challenged by the Appellant and Ors. before various High Courts as well as this Court also. During the pendency of the abovementioned litigation, initially the Appellant Company did not pay the abovementioned two imposts under the protection of interim orders of the High Court. With reference to the cess, such nonpayment pertains to the period between 29th April 1988 to 4th April 1991 and with referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount already paid to the State. 9. The writ petitions filed by the Appellant before the High Court of Andhra Pradesh challenging the constitutionality of the Validation Act came to be disposed of by the High Court by a judgment dated 12.9.2001. The operative portion of the judgment reads as follows: In the light of the judgment of the Apex Court in District Mining Officer v. Tata Iron and Steel Company, the challenge to the constitutional validity of the Cess and other Taxes on Minerals (Validation) Act should succeed and the Petitioner is entitled for a declaration that the Respondents legally cannot recover cess on royalty and MRT from the Petitioner from 28.4.1988 and 8.2.1990 respectively till 4.4.1991. In that view of the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case (supra) did not really consider the legal effect of passing on of the tax liability by a person who is primarily responsible to pay the tax to the ultimate consumer. On the other hand, it is submitted by the learned senior Counsel that the judgment of this Court in Bhadrachalam Paperboards Ltd. and Anr. v. Government of A.P. and Ors., (1998) 6 SCC 250 dealt with this aspect. 13. It was a case where the bamboo supplied from the Government Forest to the Appellant was assessed to sales tax. However, such a levy and collection was eventually found to be illegal by the High Court. The question arose whether the Bhadrachalam Paperboards could claim refund of the amounts illegally collected by the State. This Court noticing that the bamboo pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the aforesaid observations would be applicable in the case of captive consumption as well. To claim refund of duty it is immaterial whether the goods imported are used by the importer himself and the duty thereon passed on to the purchaser of the finished product or that the imported goods are sold as such with the incidence of tax being passed on to the buyer. In either case the principle of unjust enrichment will apply and the person responsible for paying the import duty would not be entitled to get the refund because of the plain language of Section 27 of the Act. Having passed on the burden of tax to another person, directly or indirectly, it would clearly be a case of unjust enrichment if the importer/seller is then able to get refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary evidence if the Appellant had not really passed on the liability to a third party. Such liberty we see is already given by the High Court by the impugned judgment. The Appellant, if so advised, may make such a claim before the competent authority within a period of six weeks from today and adduce necessary evidence in accordance with law. If such an application is made by the Appellant, the Respondents are directed to dispose of such application expeditiously. SLP (C) Nos. 10887-10888 of 2002, SLP (C) Nos. 10889-10891 of 2002, SLP (C) Nos. 10892-10894 of 2002 AND SLP (C) Nos. 10895-10896 of 2002 18. The issue involved in these matters is substantially the same as the issue involved in Civil Appeal No. 5484 of 2002, though there ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
