Versus P R E S E N T HON'BLE MR. JUSTICE PRASHANT KUMAR This writ application has been filed for the following. reliefs:

Transcription

1 CIVIL WRIT JURISDICTION CASE No. 33 of 1994 (R) In the matter of an application under Articles 226 and 227 of the Constitution of India M/S Tata Engineering & Locomotive Company Limited,Singhbhum(East), Jamshedpur Petitioner. Versus 1 State of Bihar, Through the Secretary,Deptt. of Transport,Patna. 2. The Commissioner of Transport, Govt. of Bihar, Patna 3. The District Transport Officer, Singhbhum(East) Jamshedpur Respondents. For the Petitioners : M/s. V.P.Singh, Sr.Advocate & Ashok Kr. Sinha For the Respondents : Mr. Atanu Banerjee, G.A. Reserved on Delivered on 10/03/2015 P R E S E N T HON'BLE MR. JUSTICE PRASHANT KUMAR Prashant Kumar,J. This writ application has been filed for the following reliefs: (A) a writ of prohibition or in nature thereof prohibiting the Respondents from assessing, realising and demanding the Road Tax or Additional Road Tax under provisions of the Bihar Motor Vehicles Taxation Act 1930 ( Bihar and Orissa Act II of 1930) ( hereinafter to be referred as "the Taxation Act" or "the Act" only) and the Rules framed thereunder being Bihar Motor Vehicles Taxation Rules 1930 ( hereinafter to be referred as "the rules" only) on the vehicles viz. Trippers, Dumpers and Chassis manufactured by the petitionercompany which are "not constructed or adopted for use and used solely for the transportation of goods in the course of trade" but merely transported to different sales centre from the manufacturing centre; (B) a writ of mandamus or in nature thereof commanding/restraining the Respondents from enforcing the provisions of the Act and the Rules or demanding road tax/additional road tax on the vehicles of the petitionercompany manufactured and transported to different sale centres but have "neither been constructed nor adopted for use and used solely for the transportation of goods in the course of trade" (C) a writ of mandamus or in nature thereof commanding/directing the Respondents to refund, with interest, the Road Tax/Additional Road Tax illegally realised by the Respondents from the petitioner-company from the period Feb'79 till date on the chassis, Dumpers and Trippers

2 -2- manufactured by the petitioner-company and transported to different sales centre which were neither constructed nor adopted for use and used solely for transportation of goods in the course of trade. AND/OR for issuance of any other appropriate writ(s) or order(s) or direction (s) in the facts and circumstances of this case and in the interest of justice." 2. During pendency of this writ application, petitioner filed a supplementary affidavit on and at paragraph no.7 of the aforesaid supplementary affidavit, petitioner stated that it confines its prayer to refund of the road tax and additional road tax paid by it for the period February 1979 to October, 1993 with interest. Thus, petitioner is not pressing this writ application with respect to relief No.1 (A) and 1(B). 3. Petitioner is a public limited company, engaged in manufacturing/production of commercial vehicles, earth moving machines and other engineering goods, commercial vehicles including motor vehicle chassis, dumpers/trippers etc. It is stated that aforesaid vehicles manufacture in its factory situated at Jamshedpur and then send to different sales centres. It is stated that as per Section 6 of the Bihar and Orissa Motor Vehicle Taxation Act, 1930 ( herein after referred as the Act.), the road tax and additional road tax levied on various motor vehicles in the then State of Bihar. It is stated that as per Second Schedule of the Act, the aforesaid road tax and additional road tax can be levied on the vehicles constructed and adopted for the use and used solely for the transportation of goods in course of trade. It is stated that in the year 1974, when petitioner applied for temporary registration of dumpers, trippers and chassis, the Registering Authority ( Respondent no.3) refused to register them without payment of road tax. It is further stated that on , the The District Transport Officer, Jamshedpur informed that petitioner is liable to pay road tax on dumpers, trippers and chassis and directed it to pay Rs. 5,80,021=02 towards road tax. It is further stated that for realisation of said amount, a certificate case initiated. It is then stated that the petitioner challenged aforesaid certificate case in C.W.J.C. No of 1974, but the same was disposed of on with some direction. Against that order, petitioner filed Special Leave to Appeal before the Hon'ble Supreme Court. The said appeal was disposed of by the Hon'ble Supreme Court on , with a direction to the petitioner to raise all the points before the Certificate Officer. It is stated that petitioner filed objection before the Certificate Officer, which was rejected on The Certificate Officer issued

3 -3- demand notice of Rs. 09,08,740=38, which was paid by the petitioner in the year Thereafter, the District Transport Officer, Jamshedpur raised another demand of Rs.06,72,931=20 for the period from January, 1975 to January, The petitioner paid the said amount on protest. It is stated that against the order of Certificate Officer, petitioner filed writ application vide C.W.J.C.No. 133 of 1980 (R) and prayed for refund of the amount deposited by it. The aforesaid writ application was permitted to be withdrawn with a direction to the petitioner to exhaust alternative remedy. Thereafter, petitioner filed appeal before the Deputy Commissioner, Singhbhum, which was dismissed. Thereafter, petitioner filed Revision Application before the Commissioner, South Chotanagpur, Ranchi. The same was also dismissed on Against the aforesaid orders, petitioner filed writ application being C.W.J.C. No of 1987(R). The aforesaid writ application decided by judgment dated and it was held that the petitioner is not liable to pay road tax on the vehicle manufactured and transported by it to various sales centres, because schedule of the Act will apply only to those vehicles which were used solely for transportation of goods in course of trade. In that judgment, respondents were directed to refund the amount already realized from the petitioner. It is further stated that petitioner's company was forced to pay nearly about Rs.60 lakhs, as road tax and additional road tax on the dumpers, trippers and chassis manufactured and transported to different sales centres. It is stated that since the aforesaid levy of road tax and additional road tax are against the judgment of this Court, therefore, respondent-state is liable to return the aforesaid amount with interest. It is stated that petitioner has made several representations for refund of aforesaid amount, but all in vain. Therefore, present writ application filed. It is stated that during the pendency of this writ application, the Govt. of Bihar promulgated an Ordinance on and repealed the Motor Vehicle Taxation Act, After the said Ordinance, no such tax levied against the petitioner. Therefore, petitioner confined its prayer only for refund of road tax and additional road tax, levied for the period February, 1979 to October It is submitted by the learned counsel for the petitioner that since respondents have illegally levied road tax and additional road tax by misinterpreting the aforesaid Act, therefore, they are liable to refund the said amount with interest, in view of the judgment of Patna High Court ( Ranchi Bench) in C.W.J.C. No of 1987(R).

4 -4-5. On the other hand, learned Government Advocate appearing for the State, submits that petitioner has not established that it had not passed the burden of road tax on the purchasers, therefore in the instant case, doctrine of unjust enrichment will apply. Thus, the petitioner is not entitled to get any refund. Learned Government Advocate relied upon the judgment of Hon'ble Supreme Court in Mafatlal Industries Ltd. and others.vs. Union of India and others" reported in 1997(5) SCC In reply, Mr. V.P.Singh learned senior counsel for the petitioner submits that claim of the petitioner relates to the period from February, 1979 to October, 1993, therefore, aforesaid judgment of the Hon'ble Supreme Court will not apply in this case. He further submits that as per paragraph no. 10 of the supplementary affidavit petitioner's company had not passed the burden of road tax and additional road tax on the consumers, therefore, doctrine of unjust enrichment will not apply in this case. Hence, petitioner is entitled to get refund of road tax/ additional road tax illegally levied by the respondents. 7. Having heard the submissions, I have gone through the records of the case and the law laid down by their Lordships of Hon'ble Supreme Court in Maftlal Industries Ltd. (Supra ). In the aforesaid judgment, it has been held that if any tax or duties levied by misinterpretation or misapplying the provisions of the Act, then the aggrieved person entitled to claim refund by filing an application before the appropriate authority. However, in the said judgment their Lordships further held that aforesaid aggrieved person can succeed in making such claim for refund of the tax already paid, if he or she alleges and establishes that he or she had not passed the burden of tax or duty on the another person. In this respect, the following propositions laid down by their Lordships of Hon'ble Supreme Court at paragraph no. 108 (iii) and (v) of Maftlal Industries Ltd (Supra ) case is relevant, which run as follow : (iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment.

5 -5- Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that amount is retained by the State, i.e. by the people. There is no immorality or impropriety involved in such a proposition." The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched." (v) Article 265 of the Constitution has to be construed in the light of the goal and the ideals set out in the Preamble to the Constitution and in Articles 38 and 39 thereof. The concept of economic justice demands that in the case of indirect taxes like Central Excises duties and Customs duties, the tax collected without the authority of law shall not be refunded to the petitioner-plaintiff unless he alleges and establishes that he has not passed on the burden of duty to a third party and that he has himself borne the burden of the said duty." 8. From plain reading of aforesaid paragraphs, I find that petitioner of this case can succeed only if it pleaded that it has not passed on the burden of tax levied from it to a third party and further if it establishes such pleading through cogent evidence. 9. In the instant case, no such averments made in the main writ application. However, petitioner made such averments at paragraph no. 10 of supplementary affidavit filed on But, I find that in support of aforesaid statement, petitioner has not annexed any document. At paragraph no.11, petitioner had given explanation that as per Rules of the Company, all the documents were destroyed, therefore, such documents have not been annexed. The aforesaid explanation of the petitioner is of no help, because burden is on the petitioner to prove aforesaid averments. Thus, it is for the petitioner to prove that while fixing the price of the goods, the transportation charges are not taken into account. For that purpose, in my view, petitioner could have produced the policy decision taken by it prescribing the method of fixation of price. 10. As found herein above, petitioner has not been able to establish

6 -6- that it has not passed on the burden of road tax or additional road tax on the consumers during the period from February, 1979 to October, 1993, thus, in my view, doctrine of unjust enrichment will apply in this case. Therefore, petitioner is not entitled to claim refund the tax collected from it. 11. In view of the aforesaid discussions, I find no merit in this writ application. Accordingly, the same is dismissed. ( Prashant Kumar, J.) Jharkhand High Court,Ranchi. The 10th March, Raman/