V M K MARIMUTHU NADAR Vs. STATE OF MYSORE

JUDGEMENT

(1.) These are three revision petitions preferred by an Assesses under S.23 of the Mysore Sales Tax Ad, 1857, hereinafter called the Act, and they relate to the assessment years 1963-64, 1964-65 and 1965-66. The assessee sold in the course of inter-State trade gingelly seeds purchased in the State of Mysore. In respect of some of the purchases the assessee was the first purchaser and in respect of the rest, the second purchaser. Gingelly seeds are declared goods in respect of which a single point tax is levied under S.5(4) of the Act. The asessee's turnover as second purchaser with which we are concerned were as follows : <FRM>JUDGEMENT_209_MYSLJ1_1972Html1.htm</FRM>

(2.) The assessee claimed that it is entitle to refund tax paid under the Act on all gingelly seeds sold by it in the course of inter-State sale. The claim was made as per the provisions of the proviso to S.5(4) of the Act read with Rule 39-A of the Mysore Sales Tax Rules, hereinafter called the Rules. The Sales Tax Appellate Tribunal held that the assessee is not entitled to claim refund on the ground that the assessee has not paid the tax and that under Rule 39-A the refund can be claimed only where the dealer who has made the inter-State sale has paid the tax under the Act. In the view of the Tribunal, the payment of tax by the person claiming refund is a prerequisite condition.

(3.) In our opinion, the view of the law taken by the Tribunal is opposed to the plain language of Rule 39-A. Art.286(3) of the Constitution of India, introduced by the Constitution (Sixth Amendment) Act, 1956, empowers the Parliament to make any law imposing such restrictions and conditions in regard to the levy and rates of levy and other incidental matters with regard to the imposition of tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce. Pursuant to the power conferred bv Art 286(3), the Parliament has enacted the Cental Sales Tax Act, 1956. S.15 of the said Act is the law made by the Parliament imposing restrictions and conditions in regard to tax on the sale or purchase of declared goods within a State. Clause(b) of Section 15 provides as follows :