IPJAHHAA TRADERS Vs. STATE OF HARYANA

JUDGEMENT

(1.) This order shall dispose of a bunch of six appeals bearing VATAP Nos. 39, 60, 61, 73, 79 and 107 of 2013 as according to learned counsel for the parties, the identical issues on facts and law arise in all the appeals. It was also agreed that factual matrix in all the appeals is similar and may be disposed of by one common order. For brevity, the facts are being extracted from VATAP No. 60 of 2013. VATAP No. 60 of 2013 has been preferred by the assessee under section 36 of the Haryana Value Added Tax Act, 2003 (in short, "the Act") against the order dated November 11, 2011 (annexure A6) passed by the Haryana Tax Tribunal, Chandigarh (hereinafter referred to as "the Tribunal") in STA No. 42 of 2007-08 for the assessment year 2001-02. The appeal was admitted on March 18, 2014 for determination of the following substantial questions of law:

(2.) Put shortly, the facts necessary for adjudication of the instant appeal as narrated therein are that the appellant was engaged in the business of wholesale and retail purchases and sale of the Indian Made Foreign Liquor (IMFL) and was holding L-1 and L-2 licence. As per entry 24A of Schedule B appended to the Haryana General Sales Tax Act, 1973, now repealed, the sale of IMFL by L-1 and L-2 licencees was tax-free. Since the appellant was not liable to pay tax in terms of the said entry, it could not get registration. Thereafter, entry 24A was omitted from Schedule B with effect from June 26, 2001 and a new entry was inserted in Schedule C providing that IMFL would be taxable at the stage of sale made for the fist time in the State of Haryana by an excise licensee. In terms thereof, the appellant got itself registered with the assessing authority, Faridabad. However, there was a dispute with regard to the levy of tax on the existing stock on June 25, 2001 as the first sale had already taken place within the State of Haryana and as such the L-1 and L-2 licensees were not liable to pay tax on the same in terms of entry in Schedule C. The said dispute came up for consideration of this court in CWP No. 19748 of 2001 wherein this court vide order dated March 7, 2002 held that no tax was leviable on the sale of stock of liquor available with the dealer as closing stock on June 25, 2001. Since the appellant had already paid the tax amounting to Rs. 76,38,177 on the pending stock, it claimed refund of tax. The assessment proceedings for the year 2001-02 were initiated by the assessing authority. The assessing authority vide assessment order dated December 9, 2002 (annexure A1) held the appellant entitled to refund of Rs. 76,36,377. Since the refund amount exceeded Rs. 10 lacs, the case was sent to the Excise and Taxation Commissioner for approval. After his approval, the amount was refunded to the appellant. However, after the expiry of more than four years, the Deputy Excise and Taxation Commissioner, Faridabad (East) issued a notice to the appellant to show cause as to why the assessment order be not revised and the refund made to the appellant be not recovered. The said show-cause notice was duly replied by the appellant. The revisional authority vide order dated May 1, 2007 (annexure A2) revised the order by raising demand of Rs. 84,77,746. Feeling aggrieved, the appellant filed an appeal (annexure A3) before the Tribunal. A Division Bench of the Tribunal passed a split decision on July 12, 2010 (annexure A4), whereupon, the matter was referred to larger Bench. The larger Bench of the Tribunal, vide order dated November 11, 2011 (annexure A6) adjudicated the issue against the assessee. Review petition filed against it, was also dismissed by the Tribunal on October 17, 2012 (annexure A8). Hence, the present appeals.

(3.) The learned counsel for the appellant submitted that the stock of liquor (IMFL) which was available with the appellant on June 25, 2001 was in Schedule B being tax-free item. However, with effect from June 25, 2001, it was included in Schedule C whereupon tax was payable at the stage of sale made for the first time in the State of Haryana by an excise licencee. Again on October 15, 2001, it was made tax-free. It was urged that the dispute only relates to the period from June 26, 2001 up to October 14, 2001 and since the dealer had sold the liquor without charging any tax on the stock held as on June 25, 2001, there was no question of unjust enrichment and the assessee was entitled for the refund as claimed by it. Learned counsel for the appellant had relied upon opinion of Shri Yudhavir Singh, Member of the Tribunal, wherein, it was expressed that the dealer had not collected any tax from the customers. The applicability of judgment in CWP No. 13652 of 2005 (Jatinder Singh & Co. v. State of Haryana), decided on April 1, 2010 was also disputed.