JATINDER SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) PRESENT writ petition is filed challenging order dated 13.6.2005 (Annexure P-12) refusing to grant refund of Rs.24,99,500/-and further seeking a relief of mandamus commanding the respondents to refund Rs.24,99,500/- being the tax recovered without authority of law.

(2.) BRIEF facts of the present case are that petitioner was having L1 and L-2 licences under the Punjab Excise Act, 1914 (hereinafter referred to as the 1914 Act) , for the licencing period April, 2001 to March, 2002. An amendment was carried out by the Government of Haryana in the Haryana General Sales Tax Act, 1973 (hereinafter referred to as the 1973 act) vide notification dated 26.6.2001, omitting the entry with regard to IMFL in Schedule B and inserting the same in Schedule C of the 1973 Act, thereby imposing sales tax on the IMFL sale price of which was more than Rs.500/-per quart (750 ml.). CWP No.19748 of 2001 (Bharat Singh Kamlesh Kumar Vijay Singh and Company and others Vs. State of Haryana) was filed, which was disposed of by a Division Bench of this Court vide order dated 7.3.2002, directing the authorities to reconsider the matter on the hypothesis that the sales tax shall not be leviable on the sale of the stocks purchased by the petitioners till the mid-night of June 25, 2001 in the State of Haryana and to pass fresh order accordingly. The petitioners also filed CWP No.3504 of 2002, seeking same relief as was granted by this Court in CWP No.19748 of 2001 vide order dated 7.3.2002. Writ petition filed by the petitioners was also decided vide order dated 13.3.2002 in the light of the judgement of this Court dated 7.3.2002. After the judgement dated 7.3.2002 passed by a Division Bench of this Court, the respondents refunded the sales tax collected on stocks held by the wine contractors as on 26.6.2001. M/s. Ashish Kumar and Company, L-1 licencee also got refund of Rs.39,96,200/-and M/s. S.L. and Company also received refund of the tax amounting to Rs.12 lacs. Assessment order was passed on 25.8.2002 in favour of the petitioners and the Assessing Officer also directed refund of Rs.24,99,500/-in favour of the petitioners. However, refund was withheld by respondent No.2 on the ground that examination is required as to whether the petitioners had passed on the liability and charged the sales tax while selling the stocks held by them as on 26.6.2001. The petitioners again filed CWP No.3081 of 2004 in this Court. A Division Bench of this Court vide order dated 9.2.2005 having recorded the statement given by the Senior Deputy Advocate General, Haryana, directed the Excise and Taxation Commissioner, Haryana, to pass fresh order in the backdrop of refund granted to other similarly situated companies i.e. Ashish Kumar and Company and M/s. S.L. and Company. The petitioners requested respondent No.2 to decide their case de novo without making any reference to the stand taken earlier as to whether the petitioners had passed on the liability of the tax on the opening stock on 26.6.2001. However, respondent No.2 refused to grant refund by taking shelter of judgement of the Supreme Court in Mafatlal Industries Ltd. Vs. Union of India, 1997(5) SCC 536, by observing that the petitioners had collected tax from the customers on the stock, which was held by the petitioners on 26.6.2001. Hence, the present writ petition.

(3.) WE have heard learned counsel for the parties and perused the record.