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TMI Blog2025 (3) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners by the respondent Board or the Market Committees was unconstitutional as well as ultra vires to the provisions CGST Act, 2017 and the AGST Act, 2017.'
The present writ petition is disposed of, with an observation that collection of cess from the petitioner by the respondent authorities is unconstitutional as well as ultra virus to the provisions of the CGST Act, 2017 and the AGCST, 2017. X X X X Extracts X X X X X X X X Extracts X X X X ..... customers of the petitioners, the question of the amount collected from the petitioners as cess during the period from 01.07.2017 to 12.06.2020 to be refunded to the petitioners do not arise. 6. In that regard, this Court finds it relevant to refer to paragraph Nos.22 and 27 to 31 of the said judgment, i.e. Bhatter Traders and Another (supra) which are quoted herein under:- 22. The law if applied to the facts of the present cases would make the exemption so granted by the notification No.12/2017-Central Government (Rate) dated 28.06.2017 issued by the Government of India, Ministry of Finance, Department of Revenue at Sl. No.54 and the notification No.FTX.56/2017/25 dated 29.06.2017 issued by the Finance (Taxation) Department of the Government of Assam at Sl. No.54 in respect to service by any Agricultural Produce Marketing Committee or Board or services provided by a commission agent for sale and purchase of agricultural produce pre-supposes that the cess which was collected by virtue of the Act of 1972 had been subsumed by the CGST Act,2017 as well as AGST Act, 2017. Under such circumstances, the levy of cess by the Respondent Board or the Market Committee after the said no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State i.e. by the people. There is no immorality or impropriety involved in such a proposition. The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched." 35. In Sahakari Khand Udyog Mandal Ltd. v. CCE & Customs this Court has held: "45. From the above discussion, it is clear that the doctrine of 'unjust enrichment' is based on equity and has been accepted and applied in several cases. In our o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29. It is also equally important in view of the judgment in the case of Swanstone Multiplex Cinema Private Limited (supra) to address another issue as to whether the Respondent Board can be permitted to retain the benefit of the cess levied by them illegally during the said period. In the said case, the Supreme Court observed that the Court may direct a party to divest itself of the money or benefit which in justice, equity and good consense belong to someone else, and accordingly, in that case, the Supreme Court directed the State to realize the amount from the respondents therein and pay the same to a voluntary or a charitable organization. 30. In the instant case, the Respondent Board and the Market Committee after having lost their powers to levy cess, the financial position of the Respondent Board is in a penurious state. It is surviving as could be seen from the additional affidavit filed on 28.09.2023 on the basis of grant-in-aid received from the State Government. Under such circumstances, it is the opinion of this Court that directing the State to recover the said amount from the Respondent Board would not be in the interest of justice, equity, good conscience as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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