This appeal is directed against the judgment and final order dated 7th October 2002 passed by the Division Bench of the High Court of Gujarat whereby the High Court set aside the judgment and decree dated 14th December, 1982 passed by the Civil Judge, Jamnagar directing the State Government to pay a sum of Rs.2 lacs with costs and interest and dismissed the Civil Suit as well as cross objections filed by the appellant Firm for recovery of the aggregate amount of Rs. 3 lacs on account of different counts as specified in the claim of the said suit. The Brief facts of the case are as follows: The appellant-Firm, a partnership firm registered under The Indian Partnership Act, is carrying on the business of construction of roads, buildings, dams etc. mostly in Saurashtra and also in other parts of the State of Gujarat. In response to the invitation of tender by the State Government for construction of Fulzer Dam-II in Jamnagar District, the appellant-Firm quoted and offered to construct the same for the quotation, specifications and design of the Dam vide covering letter dated 5th June, 1970. In the said letter, the appellant-Firm also offered that they would give rebate of 4% provided the final bill be paid within three months from the date of completion of the work. The offer of the appellant being the lowest amongst other parties, it was accepted by the State Government with the clause that the construction work was to be completed within a period of 24 months from the works order dated 7th September, 1970 which was subsequently clarified that the period of 24 months was to be commenced from the date of commencement of work. During execution of the said work, the Executive Engineer, who was incharge of the project, made certain additions, alterations and variations in respect of certain items of work and directed the appellant to carry out additional and alteration work as specified in writing from time to time. The final decision as to the alteration in respect of certain items of work and particularly, in respect of the depth of foundation which is known as cut off trenches took long time with the result that the Firm was required to attend the larger quantity of work and thus entitled for extra payment for the additional work. As per the works contract, the Firm was not paid the running bill within the specified time and, therefore, suffered loss. On 16th September, 1976, the Firm lodged a consolidated statement of their claims for the additional or altered, works etc. to the Executive Engineer. As there was no response, the Firm served a statutory notice. The appeal was filed therefrom to the Kerala Sales Tax Appellate Tribunal, which after going through the records referred to the provisions of refund as contained in Section 44 of the KGST Act, which reads as follows:- Refunds:- (a) When an assessing authority finds, at the time of final assessment, that the dealer has paid tax in excess of what is due from him, it shall refund the excess to the dealer. (b) When the assessing authority receives an order from any appellate or revisional authority to make refund of tax or penalty paid by a dealer it shall effect the refund. (c) 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). Again, on 24th March, 1977, after getting no reply, the Firm filed Civil Suit No. 30 of 1977 on the file of the Civil Judge, Jamnagar praying for a decree of the aggregate amount of Rs.3.5 lacs with running interest at the rate of 9% per annum from the date of final bill till the date of Suit and at the rate which may be awarded by the Court from the date of Suit till payment. Vide order dated 14th December, 1982, the Civil Judge allowed the suit and passed a decree for a sum of Rs.2,27,000/- with proportionate costs together with interest @ 6% p.a. from the date of suit till realization. Being aggrieved by the said judgment the decree, the State Government filed First Appeal No. 38 of 1983 before the High Court. (800)
