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TMI Blog2024 (7) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Bharat Petroleum Corporation together with interest of Rs. 1,13,86,862/- paid by the Bharat Petroleum Corporation on behalf of the petitioner on the delayed payment of tax in view of the decision of this Court in case of J.K. Cement Limited which is upheld by the Hon'ble Supreme Court. The respondents are therefore, directed to consider the refund application filed by the petitioner for the period 2017-18 and 2018-19 filed on 11.09.2023 to pass an order for amount of refund and interest claimed by the petitioner after verification of the C-Forms submitted by the petitioners with statutory interest payable under the provisions of the CST Act - Petition allowed. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Petitioner(s) No. 1 : Uchit N Sheth (7336). For the Respondent(s) No. 1 : Ms Maithili Mehta, AGP. For the Respondent(s) No. 1,2 : Notice Served By DS. ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Mr. Uchit N. Sheth for the petitioner and learned Assistant Ms. Maithili Mehta for the respondent-State. 2. Rule, returnable forthwith. Learned Assistant Government Pleader ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before us by the petitioner(s) in the instant special leave petitions. 4. It is brought to our notice that nine High Courts have taken the same view. Even the decision of the High Court of Rajasthan has been affirmed by this Court by dismissal of Special Leave Petition (C) No. 27529 of 2019 and connected cases vide order dated 3rd February, 2020. 5. Considering the consistent view of nine High Courts, including dismissal of special leave petitions by different Bench of this Court, and being satisfied about the exposition on the matters in issue by the High Court of Madras vide impugned judgment and order being a possible view, we decline to interfere in these special leave petitions. 6. Notably, after the decision of Punjab and Haryana High Court even the Union of India has chosen to act upon the said decision by issuing Office Memorandum dated 1st November, 2018 and directing all the States/Union Territories to follow the view taken by the Punjab and Haryana High Court. 4.3. During the initial period after 01.07.2017 till 15.03.2018, the seller issues invoice charging full rate of tax at the rate of 15% under the CST Act from the Petitioner under the belief that sale against C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Gujarat reported in (2022) 99 GSTR 328 (Guj.) which has been subsequently affirmed by Hon ble Supreme Court. 4.12. In the meantime the seller raised debit notes on the petitioner for recovering interest paid on differential tax due to belated issuance of C-Form declarations. 4.13. The petitioner invoked arbitration clause in the agreement with the seller for disputing the invocation of bank guarantee for recovery of tax under the CST Act. The seller made counter claim for interest paid to the Gujarat VAT Department on differential tax amount. The arbitrator passed award holding that the petitioner could claim refund of tax from the Vat Department of Gujarat and further that the petitioner is liable to reimburse the interest amount paid by the seller. 4.14. The petitioner therefore approached the 2nd respondent authority for putting forth its refund claim in respect of the principal tax as well as the interest amount. The petitioner relied upon the judgment of this Court in case of J. K. Cement Ltd. (Supra) wherein under similar circumstances this Court ordered granting of refund under the CST Act to the purchaser of goods. The petitioner produced copies of invoices as well as C-F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions made on behalf of the petitioner that the petitioner is entitled to the excess amount of tax paid by the petitioner as per the decision of this Court in case of J.K. Cement Limited (Supra). 7. Having heard the learned advocates for the respective parties, this Court in case of J.K. Cement Limited (Supra) has held as under : 14. In the backdrop of the facts and contentions noted hereinabove, it is an undisputed position that the petitioners have borne the burden of tax as the CST authorities at Rajasthan had refused to issue C-forms after the coming into force of the GST regime. On account of non-issuance of C-forms, the petitioners were not in a position to submit C-form declarations in respect of the diesel purchased by them for their mining activity, as a result whereof, the petitioners could not purchase diesel at concessional rate of tax from the seller - Reliance Industries Limited, which collected tax at the rate of 20 % from the petitioners and deposited the same with the respondent authorities. Now, on account of the directions issued by the Rajasthan High Court in the decisions referred to hereinabove, the CST authorities at Rajasthan have issued C-form declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited to the petitioners and the petitioners produce the requisite documents/forms before the respondent authorities, the respondent authorities are required to process such claim within twelve weeks of the same being made in writing by the petitioners. 18. Pursuant to the above order passed by the Rajasthan High Court, the petitioner in Special Civil Application No. 15333 of 2019 has made an application dated 19.4.2019 to the second respondent for refund of Rs. 2,12,09,162/- charged by Reliance Industries Limited. Along with the application, the petitioner has furnished a copy of the order of the Rajasthan High Court, a statement showing the details of high speed diesel purchases, Form 'C' Quarter IIIrd and IVth (F.Y. 2017-18), copy of the letter from Reliance Industries Limited to the Deputy Commissioner of Gujarat Sales Tax and copy of sample invoice. The petitioner in Special Civil Application No. 16288 of 2019 has made an application dated 31.8.2019 to the second respondent seeking refund of Rs. 1,97,32,644/-. Along with such application, the said petitioner has furnished a statement showing details of purchases, tax charged and submission of C forms against such purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be approaching their office for refund of the differential tax amount and has enclosed therewith Customer-wise details of inter-state sales made to buyers in Rajasthan at full rate, it is evident that Reliance Industries Limited is not disputing the fact that it is the petitioners who are entitled to claim the refund. Under the circumstances, the respondent authorities are not justified in not processing the refund claims of the petitioners. 20. In case of the petitioners, it is an admitted position that the HSD has been purchased by them from Reliance Industries Limited in the course of inter-State trade for use in mining activities and they are, therefore, the ultimate consumers thereof and hence, the question of passing on the tax burden to anyone would not arise. Consequently, the question of unjust enrichment would also not arise. 21. For the foregoing reasons, the petitions succeed and are accordingly allowed. The respondents are directed to forthwith process the refund claims of the respective petitioners and grant refund of the tax amount collected from the petitioners and deposited by the seller in accordance with law within a period of twelve weeks of the receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner and Bharat Petroleum Corporation Limited dated 17th October, 2023, it was also held that the petitioner was not entitled to interest amount of Rs. 1,13,86,862/- paid by the Bharat Petroleum Corporation Limited. 10. Therefore, in view of the above, it is held that the petitioner is entitled to the refund of the excess payment of tax i.e. difference between 15% tax paid by the petitioner and 2% tax liable to be paid by the petitioner on furnishing of C-Form by the petitioner for purchase of natural gas from the Bharat Petroleum Corporation together with interest of Rs. 1,13,86,862/- paid by the Bharat Petroleum Corporation on behalf of the petitioner on the delayed payment of tax in view of the decision of this Court in case of J.K. Cement Limited (Supra) which is upheld by the Hon'ble Supreme Court. 11. The respondents are therefore, directed to consider the refund application filed by the petitioner for the period 2017-18 and 2018-19 filed on 11.09.2023 to pass an order for amount of refund and interest claimed by the petitioner after verification of the C-Forms submitted by the petitioners with statutory interest payable under the provisions of the CST Act. Such e ..... 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