The assessing authority accepted the claim and allowed exemption. But so far as the question of refund of tax is concerned the tribunal held that there is no question of refund of tax in the case of the appellant since no tax had been demanded from the appellant for all the four years and therefore in those circumstances, there could be no question of refund under Section 44 of the KGST Act to the appellant. In the light of the aforesaid findings, the appellate Tribunal dismissed the appeal as against which a Revision Petition was filed by the appellant before the Kerala High Court which was also dismissed under the impugned judgment and order as against which the present appeals were filed. We have heard the learned counsel appearing for the parties who had taken us through all the orders which gave rise to the aforesaid two issues which fall for our consideration in the present appeals. The learned counsel appearing for the appellant submitted before us that appellant has admittedly paid the tax to the dealer at the time of occasion of sale made to it by the dealer namely the tea planters. It was also submitted by him that department has received the aforesaid tax paid in excess by the appellant and that there is a prohibition on the State to retain the excess tax in lieu of the provisions of Article 265 and 286 of the Constitution of India. It was also submitted by him that in addition to the provisions of Section 44 of the KGST Act, a pro-active view has to be taken by this Court in the facts and circumstances of the present case by referring to the decision of this Court in the case of Mafatlal Industries Ltd. & Others. Vs. Union of India & Others reported in 1997. The learned counsel appearing for the State, however, not only refuted the aforesaid submissions, but also stated that since there is a specific provision in the State Act for giving refund of the excess amount of tax, if any, paid only to the dealer and not to any other person, there cannot be a pro-active consideration in the facts and circumstances of the present case as sought to be submitted by the learned counsel appearing for the appellant. He also submitted that aforesaid reference to the decision of Mafatlal (supra) is misplaced. The learned counsel for the State went a step further and submitted that the appellant is not entitled to claim any exemption under Section 5(3) of the CST Act in view of the fact that assessee could not produce any agreement at the time of purchase of the tea in the auction sale indicating that the purchase is made in relation to export. We have considered the aforesaid submissions of the learned counsel appearing for the parties in the light of the records placed before us. Since, the contentions of the learned counsel appearing for the respondent State are with regard to the fact that the appellant cannot claim exemption in absence of proof of an agreement in support of the claim for exemption under Section 5(3) and the same goes to the very root of the claim made, we deem it proper to take the aforesaid stand at the first stage. Sub-section (3) of Section 5 has already been extracted hereinbefore. According to the said provision, the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India shall also be deemed to be in the course of such export, if such sale or purchase took place after, and was for the purpose of complying with, the agreement. When an assessing authority finds, on final assessment, that the dealer has paid tax in excess of what is due, it shall refund the excess to the dealer. When the assessing authority receives an order from the appellate authority or revisional authority to make refund of tax or penalty paid by a dealer it shall effect the refund due. Notwithstanding anything contained in sub-section (1) and (2), the assessing authority shall have power to adjust the amount due to be refunded under sub-section (1) or sub-section (2) towards the recovery of any amount due, on the date of adjustment, from the dealer. After referring to the said provision, it was held by the Tribunal that in case the dealer has paid the tax in excess of what was due from him it could be refunded to the dealer, but here is a case where not the dealer but the appellant had claimed exemption under Section 5(1). (800) |
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