STATE OF ORISSA Vs. ORISSA CEMENT LIMITED

JUDGEMENT

(1.) PLAINTIFF , a dealer registered under the Central Sales Tax Act, 1956 (hereinafter referred to as "the Central Act") filed the suit for Rs. 20,806.32 and interest for Rs. 3,745.13 as interest for three years with pendente lite and future interest. Its case is that it paid tax under the Act for the years 1962-63, 1963-64 and 1964-65 on which it is entitled to rebate under section 13(8) of the Orissa Sales Tax Act, 1947 (hereinafter referred to as "the Orissa Act") which has not been allowed to it by the defendants. Defendants filed three separate written statements in which, while not disputing the facts, they urged, amongst others, that the suit is barred under section 22 of the Orissa Sales Tax Act, 1947 and is barred by limitation. Trial court having decreed the suit rejecting the plea of the defendants, this appeal has been filed.

(2.) LEARNED Advocate-General reiterated the legal contentions and urged that in view of the specific bar under section 22 of the Orissa Act, the suit is not maintainable. To appreciate the contentions of the learned Advocate-General, section 22 of the Orissa Act is to be kept in the forefront which reads as follows :

(3.) LEARNED Advocate-General submitted that the application for allowing the rebate under section 13(8) of the Act is to be made under section 14 of the Act and no such application having been made within the time stipulated, the same has become barred. The rebate is allowed in respect of tax paid. Thus, on rebate being allowed, it becomes the tax paid in excess than is due. Thus, section 14 of the Orissa Act is attracted. Mr. Mohanty submitted that rebate is not excess of amount due from a dealer for which refund is to be made under section 14 of the Act. It is submitted by Mr. Mohanty that there is no machinery provided under the Act under which a dealer who has paid the tax can avail of the rebate when section 14 is not attracted. On consideration of the rival contentions, I am inclined to hold that section 13(8) creates a right to get back the amount of rebate from out of the tax paid. The legislature did not permit adjustment of the rebate by the dealer while filing return. It also did not intend that a dealer from whom arrear is due shall get back the amount towards rebate. Thus, though entitled to rebate, the same is to be adjusted. This can be possible if the provision for refund of excess tax in section 14 is made applicable. The application for refund form XII can also be applicable to such cases. Besides, legislature never intended that a dealer who is to get the benefit of rebate for prompt payment is to enter into litigation in a civil court to get that benefit. If the machinery provided under the Act would not have been attracted, the only other remedy would have been to file a suit since no right can be frustrated without a remedy. In that view also section 22 of the Orissa Act would be directly attracted.