M.C.TRIPATHI,J. - (1.) HEARD Sri S.D. Singh, Senior Advocate assisted by Sri Harsh Vardhan Gupta, learned counsel for the petitioner and Sri U.K. Pandey, learned counsel for the respondents. The present writ petition has been with following prayers: - "i. Issue a writ, order or direction in the nature of certiorari and to quash the Government Orders dated 12.01.07 (annexure -8), the order dated 30.07.07 (annexure -10) and the order dated 22.05.09 (annexure -12) both passed by respondent No. 3 in so far as they deny the claim of refund made by the petitioner. ii. Issue a writ, order or direction in the nature of mandamus and direct the respondents to forthwith refund to the petitioner the sum of Rs. 8,38,800/ - with statutory interest from the date of deposit till the date of refund. iii. Award cost of this petition to the petitioner. iv. Pass such other and further writ, order or direction in favour of the petitioner, as this Hon'ble Court may deem fit and proper in the circumstances of the case."
(2.) THE petitioner applied for compounding of the liability of trade tax on the production of vegetables oil in pursuance of the compounding scheme under Section 7 -D of U.P. Trade Tax Act dated 19.05.2003 hereinafter referred as "Act, 1948". The petitioner is a company duly incorporated under the Indian Companies Act, 1956 and engaged in manufacture and sale of refined oil. The State Government in exercise of its power under Section 7 -D of the Act, 1948 issued direction on 19.05.2003 for assessment year 2003 -04 for imposition of composition money on refined oil known as "Compounding Scheme". Under the said compounding scheme fees was to be computed and paid at the rate of Rs. 575/ - per tonnes on production of refined oil not exceeding 120% per annum of the installed capacity of the refined oil unit and at the rate of Rs. 675/ - per tonne on production exceeding such limit. As per the compounding scheme if the units are sick and remained closed for two years or more years preceding the date 31.03.2003 and which resume production in the assessment year 2003 -04, such units would be liable to pay proportionate compounding fees for the period starting from the date of their restarting production. Sri S.D. Singh, learned Senior Advocate has submitted that the petitioner company had started production on 23.10.2003 and as per compounding scheme the company was liable to pay only from the date of starting production for the said financial year. He has also submitted that company was required to pay compounding fee proportionate to the remaining period beginning from the date of commencement of their manufacturing activity i.e. 23.10.2003. He has also submitted that the company which has started production on 23.10.2003 and in pursuance of the compounding scheme the company has deposited the entire compounding fees as demanded and simultaneously represented against the computation and realisation of such high fees and there was no justification for realising compounding fees for the period of 01.04.2003 to 22.10.2003 (six months and 22 days) during which admittedly petitioner company did not engage any manufacturing activity and admittedly petitioner had made full compliance and also adhered to all the provisions of compounding scheme and the conduct of the company was bonafidy and in accordance to the law. He has further argued that as per the compounding scheme, the fee is to be realised in proportion of length of manufacturing activity, when company actually starts production. It is wholly unreasonable and discriminatory on the part of the State Government to deny the benefit for the period in which admittedly no production activity had been carried out by the company and in this regard the retention of the amount excess deposited by the petitioner's company is contrary to law and the order passed by the respondents are contrary to the compounding scheme and is liable to be set aside.
(3.) SRI U.K. Pandey, learned counsel for the respondents opposed the contention of the petitioner's counsel clearly stated that the State Government had initiated compounding scheme vide order dated 19.05.2003 in exercise of power under Section 7 -D of the Act, 1948 for the assessment year 2003 -04. He further states that the petitioner while obtaining for compounding had not requested for acceptance of compounding scheme in part of the assessment year rather company has accepted compounding scheme for complete assessment year and he rightly deposited the composition money for the entire assessment period and not entitled for any refund of the composition money deposited by him. He has also submitted that the petitioner had deposited money under Section 7 -D under compounding scheme, the same was not an assessment order as such the application which had been moved by the petitioner under Section 22 was not maintainable and the same could not be decided under Section 22 of the Act and the same had rightly been rejected by the respondent. Once, the petitioner itself opted compounding scheme for the entire assessment year and deposited the requisite amount, then there was no occasion for making any somersault and start claiming that the amount could be realised only from the date of starting production. He further states that since the petitioner had deposited the composition money pursuant to the compounding scheme, the same cannot be refunded on the false claim made by the petitioner stating therein that he had carried out on business only for part of compounding period.;