- (1.) - The Commercial Taxes Officer, Circle-E, Jaipur, has filed this revision petition under section 15 of the Rajasthan Sales Tax Act against the order of the Rajasthan Sales Tax Tribunal, Jaipur dated 30th August 1991 and it is submitted that the following two questions of law arise out of the order of the Tribunal : "1. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that this was not a proper case for remand under section 23 of the Rajasthan Sales Tax Act. 2 Whether in the facts and circumstances of the case, the Tribunal was right in directing the refund of the amount along with the interest @ 12%"
(2.) THE brief facts of the case are that the assessee is a dealer in Glass and has collected Excise duty on the sale of its product manufactured at the rate of 35%. THE Assessing Authority found that the excise duty is part of the sale price and during the period 23. 4. 1980 to 20. 6. 1980, a sum of Rs. 22,499/-was collected, at the rate of 8%, but the excise duty which was collected before 23. 4. 1980 was collected at the rate of 35% and tax thereon was also deposited. THEre was a dispute with regard to the rate of excise duty on Automobile Tuffened Screen Glass. It has been informed that the matter has since been decided in favour of the assessee, the duty is leviable at the rate of 8% only. THE contention of the assess before the assessing authority was that the balance amount of the rate of 27% was collected by way of deposit and will be refunded in case the matter is decided in favour of the assessee that the excise duty is leviable only at the rate of 8%. This amount has been collected from small dealers. In respect of big dealers only undertaking has been taken. THE assessing authority came to the conclusion that the excise duty form part of the sale price and taking it to be at the rate of 35%, tax was levied on the figure of 35,772/- as excise duty in respect of the sales made within the State and 10% tax was levied thereon. In the appeal preferred before the Deputy Commissioner (Appeals), Jaipur, it was informed that the matter with regard to the excise duty is pending in the High Court and the stay has been granted by the High Court on furnishing of the bank guarantee and according to the assessee only 8% excise duty is leviable which can form part of the sale price and, therefore, the balance 27% if leviable would be paid by the assessee from the deposit and in respect of big dealers, like Maharashtra State Road Transport Corporation, Hindustan Motors, M/s Automobiles Products, M/s Bajaj Scooters etc. The excise duty or deposits have not been collected and, therefore, it has to be collected from them. It was submitted that in the debit note-issued to the customers which has been mentioned 'deposit on account of contingency recovery charges i. e. 27% Excess duty refundable, if not applicable. " The Deputy Commissioner (appeals) came to the conclusion that 27% of the deposit which have been collected by way of excise duty do not form part of the sale price. It was also found that the decision of the High Court has gone in favour of the assessee and the assessee has refunded the tax which was collected on such excise duty. It was provided that the assessee would verify as to whether the amount of 27% which was collected as excise duty has been refunded to the customers or not, and it was further observed that if the amount has not been refunded then on the basis of the un-just enrichment the assessee would not be permitted to retain the amount. The matter was remanded to the assessing authority for verification only on this matter. The assessee preferred an appeal before the Rajasthan Sales Tax Tribunal and the Tribunal came to the conclusion that the provisions of Section 23-B are not applicable in respect of contingency deposit of excise duty. I have heard the arguments of learned counsel for both the parties in the matter. The Deputy Commissioner (Appeals) has mentioned in his order that the assessee has refunded the Sales Tax which was collected on the excess collection of excise duty. So far as the provisions of Rajasthan Sales Tax Act are concerned, the provisions of Section 23-B are applicable when any amount is either deposited by any person under the provisions of this Act or paid on tax by a dealer, but such amount or part thereof if subsequently found to be not payable by such person or dealer. A bare perusal of Section 23-B shows that there are two types of the assessees; one a person who may not be a dealer and the other, a person who is a dealer. In case of a person who is not a dealer, if the amount has been deposited by way of sales tax, under the provisions of the Act then the provisions of Section 23-B are applicable. But in case of a person who is a dealer it has to be found that it should be paid as tax by a dealer. In the present case, the assessee is a dealer and if the tax has been paid by him and subsequently, it is found that it is not payable then the provision of Section 23-B are applicable. The Apex Court in the case of Joshi vs. Ajit Mills (1), has held as under : - "section 37 (1) uses the expressions, in relation to forfeiture, "any sum collected by the person. . . . shall be forfeited. " What does 'collected. ' mean here? Words cannot be construed effectively without reference to their context. The setting colours the sense of the word. The spirit of the provisions lends force to the construction that 'collected' means 'collected and kept as his' by the trader. If the dealer merely gathered the sum by way of tax and kept it in suspense account because of dispute about taxability or was ready to return it if eventually it was not taxable, it was not collected. "collected', in an Australian Customs Tariff Act was held by Griffith, C. J. , Not 'to include money deposited under an agreement that if it was not legally payable it will be returned. ' We therefore, semanticise 'collected' not to cover amounts gathered tentatively to be given back if found not exigible from the dealer. " According to the above observations of the Apex Court, it is clear that even if any amount is refunded or kept in separate account by way of deposit then it will be deemed to be as not collected. The Deputy Commissioner (Appeals) in the present case has held that the Sales-tax has already been refunded. No appeal was preferred by the petitioner in the Tribunal against that order. In the order of remand it was directed that the assessing authority has to ensure that the amount of excise duty which has been collected in excess at the rate of 27% is to be seen as to whether refunded or not. Neither it is the function of the assessing authority nor any duty is cast on him to verify the collections which have been made under the provisions of any other Act. The provisions of Sec. 23-B are not application in respect of the collections of excise duty which has been realised as a contingency deposit. It is only the provision of Central Excise and Salts Act, 1944 or the legislation with regard to the central excise which will govern the matter and, therefore, the Deputy Commissioner (Appeals) could not have given the direction for verification of the refund of the excess amount collected by way of contingency of the excise duty. The words 'tax' which has been used u/s. 238 cannot refer to the deposit of tax under any other statute whether it may be in respect of direct tax or in-direct tax and reference to the tax paid is only to the tax paid under the provisions of the Rajasthan Sales Tax Act, 1954. The Sales Tax Tribunal came to the conclusion that the Deputy Commissioner (Appeals) was not justified in remanding the matter, to the assessing authority and these directions have been set aside. It may be observed that under the provisions of the Rajasthan Sales Tax Act only that part of the amount which falls within the definition of sale price alone would be considered for the purpose of taxation. A finding has been recorded that the excess collection of 27% by way of contingency deposit of excise duty do not form part of the sale price. This part of the judgement has not been challenged by the assessing authority before the Rajasthan Sales Tax Tribunal. The Deputy Commissioner (Appeals) when had held that the amount of contingency deposit do not form part of the sale-price should not have remanded the case because the amount so collected are to be governed by other Acts and not by the provisions of the Rajasthan Sales Tax Act. If there is an agreement between the buyer and the seller, the provisions of Indian Contract Act would come into play. There may be a provision in the Central Excise Act that if any amount has been collected by way of excise duty, then it is not liable to be refunded to the purchaser and then in that case it would be governed by the provisions of the Central Excise Law. The Sales Tax Tribunal has rightly come to the conclusion that the direction for remand were uncalled for in as much as the provisions of Section 23-B were not applicable.
(3.) THE Tribunal has also given a direction that the amount has to be refunded along with interest at the rate of 12% from the date deposited as provided u/s. 23 and the reason being that the order of the Deputy Commissioner (Appeals) with regard to levy of tax at the rate of 27% of the collection of contingency deposit was not held form part of the sale-price, was not challenged before the Sales Tax Tribunal by the assessing authority. THE finding with regard to the tax collected from the customers having not refunded to them was also recorded by the Deputy Commissioner (Appeals) and in these circumstances, the amount which the assessee has deposited was liable to be refunded. A further direction has been given that the said amount be refunded with interest at the rate of 12% p. a. as provided u/s. 23 of the Act. THE provisions of section 23 provides the rate of interest at the rate of 12% w. e. f. 31. 3. 82 and earlier it was 4% only from the date of application. It was only from 9. 8. 90 that the refund was to be given with interest from the date of deposit at 12%. There could not have been any question of examining the validity of the provisions of Section 23 by the Rajasthan Sales Tax Tribunal and therefore, when the matter pertains to the assessment year October 1979 to June 1980 the direction could not have been given without examining the period involved for refunding the amount of tax with interest at the rate of 12%. The Tribunal has not considered the various amendments and applicability thee of hence the matter is remanded to the Tribunal on this point and giving a decision after hearing the parties. Accordingly the revision is partly allowed. It is held that the Tribunal was justified in coming to the conclusion that it is not a proper case for remand to the assessing authority u/s. 23-B in respect of 27% collection of contingency deposit of excise duty. It is however held that the Tribunal was not justified in directing to refund the amount alongwith interest at the rate of 12% from the date of deposit. On this point the matter is sent back to the Tribunal for deciding this issue afresh. ;