Case: THE STATE OF JHARKHAND Vs. M/S. AKASH COKE INDUSTRIES PVT. LTD

directing the Respondents to issue Refund Payment Order to the petitioner for an amount of Rs.12,32,496/- pertaining to the Financial Year 2005-06, being the admitted amount adjudicated by Respondents themselves in terms of Section 15(b) of the Central Sales Tax Act, 1956 towards the claim of the petitioner for reimbursement of the tax levied by the State Government under the Bihar Finance Act, 1981 on declared goods which were subsequently sold in course of inter-State trade and commerce. Further appropriate writ/order/directions, including Writ of Mandamus, be not issued directing the Respondents to pay statutory interest to the petitioner @ 9% per annum in terms of Section 43 of the Bihar Finance Act, 1981 from the expiry of the period of six months from the date of receipt of the application of refund filed by the petitioner till the date when Refund Payment Order is issued in favour of the petitioner.?12. The case that was set up before the High Court was inter alia as follows:?The respondent is a manufacturer of Hard Coke and for manufacture of hard coke, one of the necessary raw material is ‘Coal? which the respondent used to purchase by way of intra State transaction in the State of Jharkhand. Coal including Coke, in all its forms is also one of the declared goods under Section 15 of the C.S.T. Act. He referred to the original Assessment Order for the period 2005-06 as having been passed on 17.06.2008 both under the State Sale Tax Act and C.S.T. Act. It is further its case that certain transactions have been wrongly classified as falling under the State Act and the tax was levied under the State Act. It filed an appeal before the Joint Commissioner who set aside the Assessment and remanded the matter.?13. The respondent thereupon filed Revision Petition before Commercial Taxes Tribunal complaining that instead of Appellate Authority remanding the matter back to the Assessing Officer, it should have itself decided the issue whether sales were actually inter-state and not intra-state sales. The same was dismissed. The Assessing Officer passed a revised order and the sales were determined as interstate sale. The liability was fixed at Rs.26,97,266.34. A NIL demand was raised as the respondent had already paid the said amount. The respondent was entitled to be reimbursed the tax paid under the State Law on Coal and, therefore, the respondent had filed an application seeking refund. On the basis of the detailed adjudication by the Assistant Commissioner of Commercial Taxes, the amount refundable to the petitioner under Section 15 (b) of the Act was determined and an amount of Rs.12,32,496 was determined. Thereupon, the respondent filed an application under statutory Form-XX as prescribed under Rule 35 of the Rules, 1983 but no steps were taken by the respondent for issuance of the Refund Payment Order. Despite repeated requests to process its application for refund and to issue the Refund Payment Order, no steps were taken. The respondent was entitled to claim refund of the said amount with interest @ 9% from the date of expiry of 6 months of the date of receipt of the application. 14. On these allegations, the writ petition was filed. 15. In the counter affidavit to the writ petition filed by the appellants, the question as raised in the special leave petition, viz., whether Coal and Coke are different goods mentioned under Section 15(b) of the Act was not raised. The question set up in the counter affidavit was that refund can be claimed only in the event where a separate order has been duly passed under such provisions and it was contended that the application for refund in the instant case should have been in Statutory FORM XXIII and not in regular FORM XX and furthermore there should have been an issuance of excess payment notice in the statutory demand notice in Form XV. It was also contended that there was no inaction on part of the appellants. The appellants insisted on excess payment notice in the prescribed form. A supplementary counter affidavit was filed on behalf of the Assistant Commissioner of Commerce Taxes who is the 4 th appellant before us. Therein, it was stated that under Memo dated 10.12.2016 for both financial years 2004-05 and 2005-06, the Joint Commissioner Commercial Taxes informed the respondent regarding rejection of its application for refund. Therein, it was again reiterated that the respondent is required to submit the statutory FORM XXIII. Thereafter, respondent filed an application to amend its writ petition seeking to challenge the orders of rejection. Petitioner Nos.3 and 4 in the special leave petition, filed a counter affidavit. Therein, it is inter alia contended that in Form XXIII annexed by the respondents, the amount of tax paid in Column 6 was shown as Rs.9,28,379.52 whereas the claim of the respondent in the writ petition is Rs.12,32,496. The error is said to have been originated from the order dated 04.08.2011 passed under Section 15(b) of the Act. It was, therefore, prayed that revenue of the government exchequer was involved, the writ petition may be disposed of remanding the case back to the respondent to pass an order considering the actual facts of the case. It is also stated that the appellants are duty bound to refund any such amount which will be accrued as claimed under Section 15(b) of the Act. 16. It is on these pleadings that High Court proceeded to consider the petition and pass the order which we have already adverted to. There was absolutely no whisper in the counter affidavit or additional affidavit filed by the appellants seeking to project the dispute that Coal purchased by the respondents was not the same good as Coke manufactured out of Coal and, therefore, on sale of Coke in an inter-state Sale, the respondent is not entitled to get refund of the tax paid on the intra- state purchase of Coal. 17. The same issue is involved in the other connected appeal, i.e., Civil Appeal arising out of SLP(C)No.2407/2018.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]This is despite the fact that both the goods which were purchased by way of intra-State transaction and the goods which are subject matter of the inter-State transaction are both declared goods under Section 14 of the Act.It is on these pleadings that High Court proceeded to consider the petition and pass the order which we have already adverted to. There was absolutely no whisper in the counter affidavit or additional affidavit filed by the appellants seeking to project the dispute that Coal purchased by the respondents was not the same good as Coke manufactured out of Coal and, therefore, on sale of Coke in an inter-state Sale, the respondent is not entitled to get refund of the tax paid on the intra- state purchase of Coal.The same issue is involved in the other connected appeal, i.e., Civil Appeal arising out of SLP(C)No.2407/2018.