IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.1275 of 2009 ITC LTD. THRU.MR.VIKAS BHUTRA COMMERCIAL MANAGER & CONSTITUTED ATTORNEY OF ITC LIMITED, P.O.BADDEOPUR, MUNGER- 811202…………PETITIONER/APPLICANT. Versus THE STATE OF BIHAR & ORS…………RESPONDENTS/OPPOSITE PARTIES. ----------- 25-Jul-09 Heard the parties. 2. This M.J.C application has been filed by the petitioner-ITC Ltd. seeking modification/clarification in respect of certain submissions or contentions made on behalf of State Government as noted by the Court on page-3 of order dated 18.3.2009 passed in CWJC No.998/2009. 3.The relevant paragraph at page-3 of the order runs as follows:- “On the other hand, it is contended on behalf of the State Government that the Amending Act was valid and the assessment for the occasion earlier to 29.8.2006 is refundable. It is further contended that the new schedule was substituted in view of the direction of this Court in the aforesaid I.O.C. case (Supra). But, it is also contended that the State has not filed any appeal against the decision in the said I.O.C. case (Supra). Petitioner approached the Apex Court to adjust the demand made and challenged the order by filing S.L.P. (S.L.P. No.26543 of 2008) in so far as this Court upheld the validity of the Amending Act of 2007 on similar demand leading to payment of higher 2 rate of tax. Refund requests were made but the above requests were rejected.” 4. On behalf of petitioner it was pointed out that the contention on behalf of the State that it has not filed any appeal against the decision in the I.O.C. case (Supra) is not correct. In support of filing of Special Leave Petition No.5407 of 2008 by the State of Bihar against the said judgment in the case of M/s Indian Oil Corporation Limited, Annexure-2 has been annexed. Learned counsel for the State of Bihar does not refute that position. It was further submitted on behalf of the petitioner that the submission that petitioner approached the Apex Court by filing S.L.P. No.26543 of 2008 in respect of this Court upholding the validity of Amending Act of 2007 suffers from a typographical error because the said S.L.P. was in respect of validity of the Amending Act of 2006. Learned counsel for the State does not dispute this submission also. In fact, 3 documents annexed with Annexure-4 show that the issue raised by the petitioner before the Supreme Court in S.L.P. No.26543 of 2008 relates only to that part of the judgment which upheld the validity of Amending Act of 2006. It was further submitted that there was no prayer made in that S.L.P. to adjust the demand made in subsequent years and neither refund requests were made nor such requests were rejected by the Apex Court. 5. Learned counsel for the State is not in a position to rebut the aforesaid submissions but he seeks a further clarification that in subsequent proceeding against the petitioner, State be given liberty to produce any order of the Supreme Court, if available, to substantiate the submissions noted in the concerned paragraph which is sought to be modified. 6. In the facts of the case, we have no difficulty in clarifying that the State has filed 4 an appeal against the decision in the said I.O.C case and submission to the contrary is fit to be deleted. It is further found that there is not material to show that petitioner approached the Apex Court to adjust the demand made or to challenge the validity of Amending Act of 2007. That submission noted earlier is also fit to be expunged. In view of the aforesaid finding it appears that the earlier submission that refund requests were made but the above requests were rejected does not apply to the case of this petitioner but probably to the case of some other parties such as I.O.C which the State wanted to rely upon as a precedent. Hence, the liberty sought by the State is granted that it may produce relevant orders passed in respect of petitioners to substantiate the submission noted earlier that refund requests were made but were rejected. 7. It is further made clear that submissions made on behalf of the State and 5 noted in the order dated 18.3.2009 shall not be taken as conclusive or as reflecting the opinion of this Court. Those submissions will not prejudice the parties and they will be free to lead evidence or produce materials in support of their respective submission in any subsequent proceeding. With these modifications/clarifications this M.J.C is finally disposed of. perwez (Shiva Kirti Singh, ACJ.) (Dr. Ravi Ranjan,J.)