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Judgment
Heard learned counsels for the parties. Since all these review applications arise out of the same Judgement and Order, they have been heard together and are being disposed of by this common order.
Indian Oil Corporation Ltd, which was a party respondent in W.P. (C) No. 6048 of 2017 and the analogous matters, is aggrieved with paragraph No.27 of the Judgment and Order dated 28.8.2019 passed by this Court in the aforesaid matters, and has filed all these civil review applications.
Before entering into the merits of these cases, we take note of the fact that in the review applications in opening paragraphs, the review petitioner has stated that after the hearing was concluded in the aforesaid writ applications, the Judgment was reserved and when the Judgment was delivered, it was found that in paragraph-27 of the Judgment, there was some specific direction upon the review petitioner, for which, there was neither any prayer in the writ applications, nor any argument was made. We would like to clarify at this stage itself that the Judgment was never reserved in the writ applications, rather, upon conclusion of the arguments, the Judgment was dictated in the open Court by us in presence of the learned advocates of all the parties, including learned counsel for the review petitioner as well. As such, this statement is against the record and absolutely uncalled for. However, we do not propose to take any action in the matter, except giving a counselling suggestion to the counsel for the review petitioners to be careful while drafting applications and to be fair enough to bring on record the correct facts only and not the incorrect facts.
The writ petitioners, who were engaged in manufacturing process, mining operations or power generation, were the bulk purchasers of High Speed Diesel for those purposes by way of inter State trade, and were aggrieved by the circular dated 11.10.2017, issued by the State of Jharkhand in its Commercial Taxes Department, denying the issuance of Form-'C', for all the items included in definition of 'goods' given under Section 2(d) of the Central Sales Tax Act. The writ petitioners were aggrieved by the fact that High Speed Diesel which, was one of the items included in the definition of Civil Rev. No. 113 of 2019 and analogous matters the 'goods' as aforesaid, and accordingly, they were denied the issuance of Form-'C' by the concerned authority, depriving them of the concessional rate of Central Sales Tax (in short CST), on the purchases made by them. They approached this Court in W.P.(C) No. 6048 of 2017 and the analogous matters, which were disposed of with the following directions :-
"26. We do not find any merit in the submission of the learned counsel for the State that since the dealers are no more liable to pay tax under the JVAT Act, in view of the fact that the word "goods" used in Section 2(i) of the CST Act defining the 'Sales tax law' shall mean only those six goods as defined under Section 2(d) of the CST Act, their registration under Section 7(2) of the Act shall come to an automatic end. That being the position, the very reasoning for issuance of the circular dated 11.10.2017 has no legs to stand in the eyes of law and the said circular cannot be sustained in the eyes of law. The same view has been taken by the Hon'ble Punjab and Haryana High Court in Capro Power Limited's case (supra), as affirmed by the Hon'ble Supreme Court and the similar views have been taken by the seven other High Courts in the similar facts and circumstances. We see no reason to deviate from the consistent stands taken by the different High Courts of the Country. Accordingly, the impugned circular dated 11.10.2017 issued by the State Government in its Commercial Taxes Department, which have been challenged in all these writ applications, is hereby, quashed.
Pursuant to the interim orders passed in these writ applications, Form-C have been issued to the petitioners and it is an admitted case by the learned counsel for the petitioners that provisional credit notes have also been given to them by the respective oil companies. We make it clear that the provisional credit notes given to the petitioners shall be given effect to, or in any case in which the provisional credit notes have not been given, the required refund shall always be given to the petitioners. If the respective oil companies have made the deposit to the State exchequer, they shall also be entitled to claim the refund thereof."
The review petitioners, who were the party respondents in the aforesaid writ applications, are aggrieved with the directions given in paragraph-27 of the Judgment as aforesaid.
It may be pointed out that during the pendency of the writ applications, pursuant to the interim orders passed by the Court, Form-'C' had been issued to the writ petitioners and pursuant to the submission of those Form-'C' to the Oil Company, i.e., the review petitioners, the Oil Company had issued the provisional credit notes in favour of the writ petitioners. The review petitioners are aggrieved with the fact that in paragraph-27 of the Judgment, it was made clear that the provisional credit notes given to the petitioners shall Civil Rev. No. 113 of 2019 and analogous matters be given effect to, or in any case in which the provisional credit notes have not been given, the required refund shall always be given to the writ petitioners. It was also made clear that if the respective Oil Companies have made the deposit to the State Exchequer, they shall also be entitled to claim the refund thereof.
Learned senior counsel for the review petitioners has submitted that this relief was neither prayed for by the writ petitioners nor there was any argument on the same. It is submitted by learned senior counsel that after the Judgment passed by this Court, they have claimed the refund on the basis of Form-'C', but their claims have been rejected by the concerned authorities in the State of West Bengal.
Learned counsel for the review petitioners has also placed before us that a similar situation arose in the State of Rajasthan and in the State of Gujarat. The State of Gujarat refused to refund the extra amount of CST deposited by the selling dealer, i.e., Reliance Industries Ltd., to them, for the inter State sale of High Speed Diesel for use in the mining process in the State of Rajasthan. The matter had traveled to the Gujarat High Court in R/Special Civil Application Nos. 15333 of 2019 and 16288 of 2019, wherein by Judgment dated 18.12.2019, it was held by the Gujarat High Court that it was for the purchasers of High Speed Diesel to claim the refund from the concerned authorities and any claim of refund by the selling dealer, i.e., Reliance Industries Ltd., would not be appropriate as the question of unjust enrichment would arise in that case. Placing reliance on this decision, it was submitted by the learned senior counsel for the review petitioners that pursuant to the Judgment passed by this Court, the review petitioners could not claim any refund of the extra amount of CST, already deposited by them to the State Exchequer in the State of West Bengal, and they cannot be made liable to refund the amount to the writ petitioners.
Learned counsel for the writ petitioners-opposite parties have opposed the prayer, submitting that there is no occasion for review of the Judgment passed by this Court, as the same is based upon the decision of the Hon'ble Apex Court and followed by several High Courts in the Country.
Having heard the learned counsels for both sides and upon going through the record, we find that in paragraph-27 of the Judgment quoted above, there is nothing to prejudice the review petitioners. This Court had only set aside the circular dated 11.10.2017, issued by the State of Jharkhand in its Commercial Taxes Department, denying the issuance of Form-'C', to the Civil Rev. No. 113 of 2019 and analogous matters writ petitioners and as a necessary consequence thereof, held the writ petitioners entitle to refund of the tax deposited by them. Since it was brought to the notice of this Court that pursuant to the Form-'C' issued in obedience of the interim orders passed by this Court, provisional credit notes had also been issued to the writ petitioners by the review petitioner Oil Company, we made it clear that the provisional credit notes shall be given effect to, and in any case, if the CST has been deposited to the State Exchequer, the respective Oil Companies shall be entitled to claim the refund thereof.
It appears that some of the writ petitioners have filed contempt applications in this Court for non-compliance of the Judgment and Order dated 28.8.2019 passed by this Court in the aforesaid writ applications, which have compelled the review petitioners to file these review applications. We make it clear that there is no occasion for review of the Judgment and Order dated 28.8.2019 passed by this Court in W.P.(C) No. 6048 of 2017 and the analogous matters, rather, if the refund of the CST deposited to the State Exchequer in the State of West Bengal is refused by the State authorities of West Bengal, it is open to the writ petitioners or even to the review petitioners to approach the appropriate forum for the required relief. We only want to make it clear that so far as the State of Jharkhand is concerned, in paragraph-27 of our Judgment, we have already given the liberty even to the review petitioners to claim the refund from the authorities concerned, if the amount of CST had already been deposited by them in the State Exchequer. As such, the case of the petitioners cannot be governed by the Judgment of the Gujarat High Court in R/Special Civil Application Nos. 15333 of 2019 and 16288 of 2019.
We do not find any merit in these civil review applications and the same are accordingly dismissed, with the clarification as aforesaid. All the pending caveat and the interlocutory applications in these review petitions also stand disposed of.