New Star Corporation vs State of Assam and Others

Ranjan Gogoi, J.—Heard Mr. J.L. Sarkar, learned Counsel for the petitioner and Mr. D. Saikia, learned State Counsel appearing for the official respondents.

This writ petition has been filed seeking orders directing the respondents to refund the amounts paid by the petitioner for the assessment years 1994-95, 1995-96, 1996-97 and 1997-98 on account of tax on containers in respect of exempted goods. According to the petitioner, a division Bench of this Court in the case of Bijoy Singh Bimal Kumar v. State of Assam reported in [1999] 113 STC 436: (1998) 3 GLR 164 has laid down the law that levy of tax on containers of exempted goods would not be authorised and that if no tax is leviable on the goods then no tax can either be levied on the containers in which such goods are contained. On the above basis the petitioner has filed the aforesaid writ application for directions to the authority to refund to the petitioner the tax already paid.

The provisions for refund of tax are contained in Section 30 of the Act. The statute has vested the power to grant refund in the assessing officer. In the present case the approach to this Court under Article 226 has not been preceded by any approach to any of the authorities who have been conferred the power to grant refunds by the provisions of the Act. The entitlement of a person claiming refund has to be decided on the basis of the existence of certain primary facts. In such circumstances, I am of the view that the petitioner should have approached the authority competent to grant refund under the Act with the claims made instead of approaching the writ court at the first instance. Accordingly, I dispose of this petition by holding that it will now be open for the petitioner to move the appropriate authority under the Act for refund of any amount that may, according to the petitioner, be due.

Writ petition shall stand closed in terms of the above order.