TATA SPONGE IRON LTD. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS writ petition has been filed for issuance of a direction to the opposite parties to refund the sales tax collected from the petitioner - company by quashing the order dated February 4, 1998 (annexure 1) and assessment order dated March 24, 1998 (annexure 2) to the writ petition.

(2.) THE petitioner had established a large -scale industrial unit. However, it claimed benefit of tax exemption in view of part III of the Industrial Policy Resolution, 1989 (hereinafter called "IPR 1989") by filing an application on January 22, 1991. As the same was not granted, he filed OJC No. 6198 of 1994 which was decided vide judgment and order dated May 5, 1995 (Ipitata Sponge Iron Ltd. v. State of Orissa [2001] 122 STC 259 (Orissa)). Subsequent thereto, respondent No. 5 recommended the case of the petitioner for granting benefit of tax holidays vide letter dated March 10, 1997. As no action was taken in pursuance of the said letter, the petitioner again approached this court by filing OJC No. 5990 of 1997 which was also disposed of (Tata Sponge Iron Ltd. v. State of Orissa [2001] 122 STC 354 (Orissa)) making certain observation and issuing certain direction to the respondent to consider the claim of the petitioner. It's claim was rejected vide order dated February 4, 1998 and assessment order dated March 24, 1998 was passed. Hence this petition.

(3.) FOR the same, reliance can also safely be placed on the judgment in State of Madhya Pradesh v. Vyankatlal AIR 1985 SC 901, wherein the apex court observed that ".. only the persons on whom lay the ultimate burden to pay the amount, would be entitled to get the refund of the same, and if it is not possible to identify the person on whom such burden has been placed for payment towards the fund, the amount of the fund can be utilised by the Government for the purpose for which the fund was created .." While deciding that case, the honourable Supreme Court relied upon a large number of its earlier judgments, e.g., Orient Paper Mills Ltd. v. State of Orissa [1961] 12 STC 357 (SC); AIR 1961 SC 1438, State of Bombay v. United Motors (India) Ltd. AIR 1953 SC 252, Shiv Shanker Dal Mills v. State of Haryana AIR 1980 SC 1037, Newabganj Sugar Mills Co. Ltd. v. Union of India AIR 1976 SC 1152 and Sales Tax Officer, Banaras v. Kanhaiya Lal Makund Lal Saraf [1958] 9 STC 747 (SC); AIR 1959 SC 135. In Newabganj Sugar Mills AIR 1976 SC 1152, the honourable Supreme Court devised a procedure to deal with a situation where equity demanded redistribution but procedural expensiveness and cumbersomeness effectively thwarted legal action by directing the Registrar of the High Court to receive and dispose of claim from the ultimate consumer for excess price paid on proper proof. In Amar Nath Om Parkash v. State of Punjab [1986] 62 STC 130 (SC); AIR 1985 SC 218, the apex court observed that a mere declaration that the levy and collection of fee in excess of the required amount would automatically vest in the dealer, the right to get excess amount when in fact he did not bear the burden of it and the morale and equitable owner of it was the consumer public to whom burden had been passed on. Similar view had been taken by the Supreme Court in Indian Oil Corporation v. Municipal Corporation, Jullundhar AIR 1993 SC 844. In State of Rajasthan v. Novelty Stores AIR 1995 SC 1132, the apex court observed as under :