EAST COAST BREWERIES AND DISTILLERIES LIMITED AND ANR. Vs. COMMISSIONER OF COMMERCIAL TAXES AND ORS.

JUDGEMENT

(1.) IN the present application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 the petitioner has challenged the order of refusal to refund excess payment as illegal and ultra vires and is discriminatory in violation of article 14 of the Constitution of India. Although no prayer for a declaration that Section 14 of the West Bengal Sales Tax (Settlement of Dispute) Act, 1999 is ultra vires has been made yet the direction for refund has been sought for on the ground that the refusal made by the respondent is violative of article 14 of the Constitution of India. The matter, therefore, was heard by three Members Bench since the question of constitutional validity of Section 14 of the West Bengal Sales Tax (Settlement of Dispute) Act, 1999 is involved.

(2.) THE assessment for the period four quarters ending on March 31, 1997 was completed on June 22, 1999. An appeal was preferred against the order on September 9, 1999. During pendency of the appeal an application under Section 5 of the West Bengal Sales Tax (Settlement of Dispute) Act, 1999 (hereinafter referred to "the Act, 1999") was submitted before the designated authority on September 12, 2001. Before filing the said application a sum of Rs. 2,50,000 was deposited on May 24, 2000 to avoid penalty, interest, etc., on the assessed tax. The application under Section 5 of the Act, 1999 was disposed of on April 19, 2002 and tax Rs. 1,91,558 finally determined by the authority became payable by the petitioner within 30 days from the receipt of the notice issued in form 2. The competent authority being satisfied with the deposit of Rs. 2,50,000 made previously on May 24, 2000 issued a certificate of settlement in terms of the provision of Sub -section (1) of Section 8 of the Act, 1999 on July 15, 2002. The petitioner, therefore, became entitled to get refund of Rs. 58,442 being paid in excess which was illegally withheld by the respondent No. 2 on the ground that the applicant -dealer since already had paid more than the demand raised, the question of refund did not arise as per the provisions of the Act, 1999. Withholding payment of such excess amount, thus is violative of the principles laid down in article 14 of the Constitution of India. The respondent, therefore, should be directed to refund to the petitioner the amount deposited in excess by him.

(3.) ON behalf of the respondents, it is submitted that the petitioner since opted to deposit more than 33 per cent of the amount of tax in dispute, is not entitled to get refund under this Act, 1999. The petitioner actually deposited the amount of Rs. 2,50,000 as admitted tax before filing an appeal. The amount, accordingly, was accepted as final settlement of the dispute. The petitioner, therefore, is not entitled to get refund of Rs. 58,442 as claimed. The application is liable to be dismissed.