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TMI Blog2007 (3) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... also be open to the assessing authority, if any situation arises therefor, to call for any record from the Rourkela Steel Plant or any other 'dealer'. We, furthermore, are of the opinion that the respondent would not be entitled to any interest on the refund amount for the present as the quantum thereof is yet to be determined. Appeals are accordingly allowed to the extent mentioned hereinbefore - Civil Appeal No. 1215, 1216 of 2007 - - - Dated:- 8-3-2007 - S.B. Sinha and Markandey Katju, JJ. Joseph Vellapally, Senior Advocate, Mrs. Kirti Renu Mishra, Advocate with him for the appellant. B.A. Mohanty, Senior Advocate, Ms. Mamta Tripathy and Ashok Mathur, Advocates with him for the respondents. [Judgment : S.B. Sinha, J.]. - Leave granted. 2. Respondent herein, a company registered under the Indian Companies Act, known as M/s. Crown Re-rolling (P) Ltd., is the owner of a Re-rolling mill. It is a re-rolling mill manufacturing M.S. rounds and flats, out of iron and steel scrap materials. Indisputably, the State of Orissa made an industrial policy wherefor a resolution was adopted on 13-5-1986, pursuant whereto and in furtherance whereof, exemption was granted from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest due in respect of any other period : Provided that no claim to refund of any tax, penalty or interest paid under this Act, shall be allowed unless it is made within twenty-four months from the date on which the order of assessment or order imposing penalty, as the case may be, was passed or from the date of the final order passed on appeal, revision or reference in respect of the order earlier mentioned, whichever period is later : Provided further that no claim to refund of any tax, penalty or interest paid under this Act shall be allowed in cases where there is an order for re-assessment, until the re-assessment is finalized." 5. As the said prayer of the respondent was denied, he filed a writ petition before Orissa High Court praying inter alia for the following reliefs - "Further direct the Opposite Party No. 5 6 to refund the entire amount of Sales Tax collected from the petitioner amounting to Rs. 15 lacs approximately pursuant to the notification vide Annexure-5." 6. The said writ petition was allowed holding : "6. In view of the aforesaid undisputed position, since the petitioner has already lodged representation for refund and no decision has been taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for refund in Form XII under Rule 39 of the Orissa Sales Tax Rules, 1947 for refund of tax under Section 14 of the Orissa Sales Tax Act, 1947. Since the petitioner himself had not submitted the applications in the correct form and under the correct rule, the petitioner will not be entitled to interest from the date of the applications as claimed by him in this writ petition. 14. For the aforesaid reasons, we quash the impugned order dated 18-12-1997 of the Sales Tax Officer, Rourkela Circle-II, Panposh in Annexure-1 to the writ petition and direct that the petitioner will submit fresh applications for the periods in question in Form XII under Rule 39 of the Orissa Sales Tax Rules, 1947 and the Sales Tax Officer, Rourkela Circle-II, Panposh will compute the amount of tax paid by the petitioner on the tax paid goods purchased by it as raw materials for its industry on the basis of the copies of the purchase bills produced before him by the petitioner and determine such amount to be refunded and refund the same to the petitioner within 90 (ninety) days from the date of such application failing which the petitioner will be entitled to interest at the rate mentioned in Section 14-C o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the registered dealers and the goods in question are tax paid goods. Drawing our attention to the earlier judgment of the High Court dated 23-6-1997, the learned Counsel contended that the application filed by the respondent for refund of tax should have been considered in terms of the observations made by the High Court and in that view of the matter the assessing authority could not have sat in appeal over the judgment of the High Court on the following grounds : (a) The Finance Department Notification provides for exemption from payment of tax on purchase of raw material and not refund. (b) The respondent has not paid any tax on purchase of raw material from subsequent dealers as such raw material had already suffered first point tax an earlier event of sale and therefore the respondent is not entitled to any refund. (c) The application of the respondent for refund was in the wrong form i.e. Form No. XII-A and Rule 42-A of the Orissa Sales Tax Rules, which are applicable to refund of tax paid on declared goods sold in the course of inter state trade and commerce under Section 14-B of the Orissa Sales Tax Act, which was therefore not applicable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized for the purpose of refund thus must be on the said basis. The value of the goods of substantive transactions, upon which no tax was paid, thus could not have been taken into consideration for the purpose of grant of exemption. If that be so, the respondent for the purpose of establishing its claim for refund was required to establish : (1) what is the quantum of tax paid to the Department by the dealer effecting first point of sale and; and (2) whether the tax paid goods have been utilized for the purpose of manufacture of its product by the respondent. 15. The question of refund could arise provided tax has been paid, the logical corollary whereof would be that the claim for the refund of the tax must be calculated on the basis of the value of the goods at the first point of sale and not thereafter. 16. The respondent had claimed the amount of refund being a sum of Rs. 15 lacs only on the basis that as the goods purchased by it are the tax paid once, 4% thereof should be directed to be refunded as if the actual tax paid was on the price paid by it. It is not so. It is no doubt true that as the point of levy of tax was the first point of sale which being exempted from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be otherwise entitled to under the general policy resolution itself. In this view of the matter, we see no illegality with the impugned judgment of the High Court in striking down a part of the notification dated 4-4-1994." 18. But, we have no doubt in our mind that the exemption could be granted on the basis of the price of the goods on first sale thereof. We, however, do not accept the submissions of Mr. Vellapally based on the decision of this Court in Amrit Banaspati Co.Ltd. Anr. v. State of Punjab Anr. (1992) 2 SCC 411 that although the respondent was entitled to exemption from payment of tax, it was not entitled to any refund. In Amrit Banaspati (supra), this Court held :- "11. Exemption from tax to encourage industrialization should not be confused with refund of tax. They are two different legal and distinct concepts. An exemption is a concession allowed to a class or individual from general burden for valid and justifiable reason. For instance tax holiday or concession to new or expanding industries is well known to be one of the methods to grant incentive to encourage industrialization. Avowed objective is to enable the industry to stand up and compete in t ..... 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