- (1.) We have heard Sri Bharat Ji Agrawal, learned senior counsel, assisted by Sri Piyush Agarwal for the petitioners. Sri S. P. Kesarwani, Additional Chief Standing Counsel appears for the State-respondents. The petitioners are registered partnership firm (in Writ Tax No. 1257 of 2007); a public limited company (in Writ Tax No. 1258 of 2007) and a private limited company (in Writ Tax No. 1357 of 2007), engaged in the business of manufacture and sale of Rajnigandha (pan masala), "tulsi (tobacco mixed pan masala) and "tulsi" (tobacco mixed pan masala), respectively. By U.P. Tax on Luxuries Ordinance, 1994, luxury tax was imposed on the sale of pan masala and gutka (without tobacco), with effect from June 15, 1994. The constitutional validity of the Ordinance was challenged in this court in W.P. No. 619 of 1994 (Varshney General Sales v. State of U.P.,2003 130 STC 202. A Division Bench of this court allowed the writ petition on November 2, 1994, declaring the levy of luxury tax to be ultra vires the Constitution of India and also violative of article 301, which is not saved by article 304(b) of the Constitution of India. The judgment was challenged in a special appeal by the State of U.P. in the Supreme Court, which was dismissed.
(2.) It is alleged that in Writ Tax No. 1257 of 2007, the petitioner/s M/s. Swastik Fragrances Ltd. deposited a sum of Rs. 16,91,740 as luxury tax for the month of July 1994 and Rs. 19,20,661 for August 1994 from its own pocket, without realizing the same from any of the customers and hence, was entitled to refund. In Writ Tax No. 1258 of 2007, M/s. Dharampal Satyapal Limited claims to have deposited Rs. 77,55,525 in July 1994 and in Writ Tax No. 1357 of 2007, M/s. Dharampal Satyapal Sons Pvt. Limited deposited Rs. 61,38,106 for July 1994 in August 1994 and Rs. 39,39,251 for August 1994 in September 1994, towards luxury tax, without having realized the same from the consumers.
(3.) W.P. No. 112 of 1996 filed by Swastik Fragrances Ltd. v. State of U.P. filed by the petitioners, was allowed by this court on April 9, 2007, with directions for an enquiry to be conducted to record as to whether the petitioner had collected the luxury tax from, the consumers and if so, in the case of refund to the petitioner, whether and why it will not be possible for the same to be refunded to the consumers from whom it was collected. This enquiry was to be made on the exceptions to the principles of unjust enrichment, laid down by the Supreme Court in Mafatlal Industries Ltd. v. Union of India, 1998 111 STC 467.;