Jyothy Laboratories Ltd v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941 ## WP(C).No.20748 OF 2017(P) ## PETITIONER/S: JYOTHY LABORATORIES LTD KANDANASSERY P.O., THRISSUR DISTRICT,KERALA - 680 102.REPRESENTED BY ITS AUTORISED SIGNATORY SRI. T.V. THILAKAN,SENIOR OFFICER ACCOUNTS,THAZHISSERY HOUSE, KANDANASSERY P.O.,THRISSUR DISTRICT - 680 102. BY ADVS. SRI.SHAJI THOMAS SRI.G.SHIVADAS SRI.H.KIRAN ## RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO FINANCE AND TAX DEPARTMENT,GOVERNMENT OF KERALA,SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 COMMISSIONER OF COMMERCIAL TAXES TAX TOWERS, KARAMANA, THIRUVANANTHAPURAM - 695 002. 3 ASSISTANT COMMISSIONER ASSESSMENT DEPARTMENT OF COMMERCIAL TAXES,SPECIAL CIRCLE, THRISSUR - 680 001. ## R1 BY GOVERNMENT PLEADER ## OTHER PRESENT: SR ADV G. SHIVDAS FOR PETITIONER., SPL GP SRI. C.E. UNNIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C) No.20748/2017** **-2-** ## **J U D G M E N T** Dated this the 3rd day of September 2019 Heard Sri.G.Shivdas, learned Senior Advocate for petitioner and Sri.C.E. Unnikrishnan, learned Special Government Pleader, for respondents. 2. The petitioner prays for writ of certiorari to call for the records leading up to and inclusive of Ext.P1 letter dated 02.11.2016, quash Ext.P1 and hold that petitioner is eligible for refund of extra amount deposited during the pendency of appellate proceedings filed against orders of assessment for the Assessment Years 2005-06 to 2014-15. The petitioner prays for consequential direction to respondents to refund the excess amount deposited by petitioner during the pendency of appellate proceedings for the Assessment Years 2005-06 to 2014-15 by holding that para 40 of the Apex Court judgment **W.P.(C) No.20748/2017** **-3-** dated 18.03.2015 (Ext.P3) refers only to VAT paid by the petitioner to the State Government and has no bearing on the excess amount paid for the period referred to above. The petitioner, in effect, prays for the reliefs referred to above for refund of amount excessively paid by the petitioner to the State Government during the pendency of the appeal and also the writ petition before this Court. The circumstances stated below are by and large undisputed between the parties to the writ petition. The issue for consideration arises as an outcome of judgment in Civil Appeal No.1440 of 2010 dated 18.03.2015 (Ext.P3). To appreciate the circumstances leading to the final adjudication of Apex Court in Civil Appeal No.1440 of 2010 (Ext.P3) and the rival submissions, the following facts are adverted to. 3. The petitioner is engaged in production of two products, namely 'Ujala Supreme' and 'Ujala Stiff and Shine' ## **W.P.(C) No.20748/2017** **-4-** (for short 'products'). The petitioner is a dealer registered under the Kerala Value Added Tax Act, 2005 (for short 'the Act'). The stand of petitioner was that the subject products are liable to tax at 4%/5% under List A of Third Schedule of KVAT. The Assistant Commissioner (Assessment), Department of Commercial Taxes, Thrissur/ third respondent herein, through assessment order dated 08.08.2006 for the period June 2005 to March 2006 reclassified the products referred to above, bringing the products under Residuary Entry 103 of S.R.O. 82/2006 at 12.5% tax and demanded differential tax, interest and penalty from petitioner. 4. One of the distributors of petitioner, i.e., M/s. M.P.Agencies, sought clarification on applicable rate of tax on the products. The clarificatory authority, by exercising the power under Section 94 of the Act, vide Order No.C7/02/07/CT dated 15.10.2007, clarified that the products fall within the **W.P.(C) No.20748/2017** **-5-** purview of Entry 103 of S.R.O. 82/2006, thereby attracting tax of 12.5%. The petitioner, aggrieved by the assessment order dated 08.08.2006, pursued legal remedy available under the Act. The petitioner was unsuccessful before the Deputy Commissioner (Appeals) and filed appeal before the Kerala Value Added Tax Appellate Tribunal in T.A.(VAT) Nos.272 of 2008 and 314 of 2008. The Tribunal allowed the appeals filed by the petitioner. The State carried the matter to this Court in O.T.Rev. Nos.13 and 16 of 2009. It is contextual to refer to the filing of writ petition by M/s. M.P.Agencies against the clarification Order No.C7/02/07/CT dated 15.10.2007 in O.T.A. No.9 of 2007. A Division Bench of this Court, vide judgment dated 06.04.2009 dismissed the appeal and the decision is reported in _M/s.M.P.Agencies vs. State of Kerala_[1] . On 12.04.2011, vide Ext.P2 order, O.T.Rev. Nos.13 and 16 of 2009 filed by petitioner were disposed of. The effect of Ext.P2 order is that the point of law 1 (2010) 18 KTR 82 (Ker) **W.P.(C) No.20748/2017** **-6-** raised in O.T.Rev. No.13 of 2009 is answered in favour of the State/Revenue and against the assessee, and the penalty considered in O.T.Rev. No.16 of 2009 is answered in favour of assessee/petitioner herein. The petitioner and M/s.M.P. Agencies challenged the order in Ext.P2 and the judgment in _M/s.M.P._ Agencies in Civil Appeal No.1440 of 2010. The Apex Court through Ext.P3 judgment allowed the appeals and for appreciating the controversy between the parties, the operative portion in Ext.P3 is excerpted: “38. From the aforesaid discussion, it is clear as crystal that two goods/products have been held to be covered under the HSN Code 3905, and HSN Code 3204.12.94 and hence, there can be no shadow of doubt that the said entries fall under entry numbers 155(8)(d) and 118(5) of the list “A” of Third Schedule of the 2003 Act covering industrial inputs and packaging materials, but that would not be material and relevant regard being had to the rules of interpretation which are applicable. The subject matter of the list will not fall under residuary entry 103 in SRO 82/2006 dated 21.01.2006, if the goods in question fall in any entry of any of the schedule. That is what is conveyed by the language employed in **W.P.(C) No.20748/2017** **-7-** Entry No.103. The said Entry, as we find, does not stipulate or carves out any exception in respect of list “A” to the Third Schedule. That being the position, once goods fall under any of the HSN classification, that is, the goods/commodities that are included in list “A” to the Third Schedule, entry 103, which is residuary in nature, would not get attracted. 39. The submissions of learned counsel for the State that the decisions under the Excise Act would have no play, for they deal with the issue of the manufacture, does not commend acceptance. The High Court has elaborately dwelled upon the issue of manufacture. We have noticed the judgments rendered by the CESTAT there is no manufacturing. It is pertinent to state here that the question of manufacture is not relevant for the purposes of 2003 Act. What is really relevant is the classification based upon the HSN number. The decisions rendered by the CESTAT have decided on the classification which is founded upon the HSN number. It has been laid down that after devolution with water the goods continue to remain classified under the same HSN number. This means that the goods remain in list “A” of the Third Schedule. It may be noted that the position would have been totally different had the goods in question been separately and specifically itemized in SRO number 82/2006 dated 21[st] January 2006. The goods which are specifically mentioned in any of the entries of the said SRO would be chargeable to tax @ 12.5%. But that is not the lis here, for the Revenue has included the goods in the residuary Entry 103 and the said entry, by no stretch **W.P.(C) No.20748/2017** **-8-** of reasoning, can be made applicable. 40. The High Court, we are disposed to think, has missed the issue in entirety and, therefore, we are obliged to dislodge the _-_ impugned judgment and orders. _However, if any assessee appellant has paid the amount of VAT to the State Government, they will not be entitled to get any refund of the said amount_ . 41. _Consequently, the appeals are allowed and the judgment and - orders are set aside with the stipulation that none of the assessee_ ” _appellant would be entitled to refund_ . (emphasis added) 5. The judgment in Ext.P3 determined the applicable VAT on the products as 4%/5%. The respondents issued revised assessment orders in Ext.P12 for all the assessment years. One of the orders is referred to in this judgment to understand and also appreciate the purport and purpose of Ext.P13 representation. The respondents through all the assessment orders in Ext.P12 series have noticed that excess amount is collected from the assessee/petitioner. “The Hon'ble Supreme Court of India vide order 2[nd] cited had clarified that the “Ujala Supreme and Ujala Stiff & Shine” is to be **W.P.(C) No.20748/2017** **-9-** classified under third schedule of KVAT Act and hence taxable at the rate of 5%. In this circumstances the assessment order read as 1[st] above has been modified and the following orders are issued. **ORDER NO.32080235512/2014-15 (April 2014) Dated 06.11.2015** Total turnover fixed as per original order : Rs.25,11,53,800.00 |Output tax due on Rs.17,38,04,954.49@14.5% :<br>Output tax due on Rs.53,21,043.61@7.25%<br>:<br>Output tax due on Rs.7,09,67,504.61 @5%<br>:<br>Output tax due on Rs.10,60,298.39@2.5%<br>:<br>--<br>Total<br>:<br>Rounded to<br>:<br>Less:<br>Input tax<br>: Rs.24,98,088.00<br>E-payment<br>: Rs.2,66,64,290.00<br>----------------------<br>:<br>Balance tax due<br>:<br>Paid as per Chalan No.729 dtd 15.05.2014<br>:<br>Excess<br>:<br>|Rs.2,52,01,718.40<br>Rs.3,85,775.66<br>Rs.35,48,375.23<br>Rs.26,507.46<br>-----------------------<br>Rs.2,91,62,376.75<br>Rs.2,91,62,377.00<br>Rs.2,91,62,378.00<br>Rs.1.00<br> Rs.51,11,478.00<br>Rs.51,11,478.00<br>================| |---|---| The demand notice already issued is modified to the above extent. 6. The petitioner submitted Ext.P13 representation requesting for refund of amount deposited over and above the applicable VAT during the pendency of assessment proceedings for the years 2005-06 to 2012-13 or while the legal statutory **-10-** ## **W.P.(C) No.20748/2017** appeals were pending. The respondent considered representations dated 22.08.2016 and 22.09.2016 and issued reply in Ext.P1 which reads as follows: “Attention is invited to the above reference. As per the Supreme Court order dated 18.03.2015, the amount paid to Government is not to be refunded. Also the interlocutory application filed by M/s.M.P. Agencies has been rejected by the Honourable Supreme Court. In this circumstances this department cannot refund the excess amount of tax paid.” 7. The petitioner tried to convince the respondents to re-examine the issue of refund by filling representation dated 05.06.2017 (Ext.P13). The respondents since are not moving in the matter, the present writ petition is filed for the reliefs referred to above. 8. The respondents contest the writ prayer in all fours. The first and foremost objection taken by the respondents is that the writ petition, for one or any of the reliefs prayed for is not maintainable. According to respondents, all the issues, **W.P.(C) No.20748/2017** **-11-** namely, applicable rate of tax, classification of products, VAT paid and that the petitioner is not entitled for refund, are no more _res integra_ in view of the judgment in Ext.P3 and order in Ext.P4. According to respondents, the petitioner is not entitled for refund of amount paid over and above 4%/5% during the pendency of appeal proceedings. The respondents state that the prayer of writ petitioner, if is considered by this Court, the same amounts to expanding the scope and effect of Ext.P3 judgment. The principle of law applied by the Court in refund of indirect taxes paid in excess is not applicable to the facts and circumstances of the case. This Court ought not to assume jurisdiction to interpret the judgment (Ext.P3) and make out an executable decree in the fashion of a decree for refund of the amount paid by the petitioner. The respondents pray for dismissing the writ petition. **W.P.(C) No.20748/2017** **-12-** 9. Sri.G.Shivdas prefaces his submission by contending that the petitioner/assessee is correct from the inception of the controversy, i.e., between June 2005 to March 2006 that the third respondent through order dated 08.08.2006 erroneously changed the classification of the products and demanded higher rate of tax from petitioner. From the inception the third respondent has been acting contrary to law. The view taken by the Tribunal in Tax Appeal No.272 of 2008 is finally approved by the Supreme Court in Ext.P3 judgment. The consequence of adjudication in Ext.P3 judgment is that the levy, demand or collection of tax at 12.5%, on the products is _ex facie_ illegal and contrary to Article 265 of the Constitution of India. He contends that paragraphs 40 and 41 of Ext.P3 judgment will have to be read together and appreciated by this Court while considering the request of petitioner for refund of excess amount paid by the petitioner. To wit he contends that in the **W.P.(C) No.20748/2017** **-13-** case on hand the petitioner is under legal obligation to pay VAT at the rate of 4% and 5% and having paid applicable tax amount, the petitioner is not entitled for refund of amount paid at 4%/5%. The difference of tax paid, i.e. 12.5% – 4%/5% is neither VAT nor can be treated as tax liability under any other head payable by the petitioner. The petitioner from the beginning has been contending that the petitioner is not passing on the difference of tax liability to customers and the difference of tax amount is paid by the petitioner, incurred avoidable liability and the excess amount deposited is akin to deposit during the pendency of the proceedings before statutory authorities, this Court or Supreme Court. The respondents/State cannot and could not receive any amount over and above than what the law authorizes in this behalf and also over and above than what is declared by the Supreme Court in Ext.P3. In nutshell, it is contended that the petitioner is entitled to refund of amount **W.P.(C) No.20748/2017** **-14-** paid over and above 4%/5% to the respondents. He refers to and relies on the decisions reported in _Ahmedabad Manufacturing & Calico Printing Co.Ltd. Vs. Workmen_[2] , _Indian Oil Corporation Ltd. Vs. State of Bihar_[3] , _Indian Oil Corporation Vs. Municipal Corporation, Jullundhar_[4] and _Gajraj Singh Vs. State of U.P._[5] firstly to bring home the principle on which refund is granted and when the claim for refund is refused. According to learned counsel the case on hand exactly fits to the _decidendi_ laid down in the reported judgments and writ prayers are allowed accordingly. 10. Sri. C.E.Unnikrishnan, the learned Special Government Pleader at the outset submits that the present writ petition is nothing but a renewed effort to revive what is conclusively and finally decided by the Apex Court. The parties to the writ petition are not only bound by Ext.P3 judgment but > 2 (1981) 2 SCC 663 > 3 1987 (27) E.L.T. 578 (S.C) > 4 (1993) 1 SCC 333 > 5 (2001) 5 SCC 762 **W.P.(C) No.20748/2017** **-15-** also Ext.P4 order dated 18.01.2016. According to him, the judgment of the Supreme Court (Ext.P3) cannot and ought not to be interpreted in the manner of interpreting a Statute or Rule or Regulation made under the Statute. The petitioner by making the instant prayers before this Court is calling upon this Court to review or revisit the judgment in Ext.P3 and order in Ext.P4. It is canvassed that the respondents are not suggesting that this Court does not have jurisdiction to decide a claim for refund, if the claim subsists or still left open by the judgment in Ext.P3 and Ext.P4 order. According to him, the restriction on refund of VAT referred in paragraph 40 is very clear that any amount paid towards VAT to the State Government cannot and could not be refunded. But the Supreme Court further held that none of the assessee/appellant could be entitled to refund. The word ‘refund’ is expansive enough to prevent any ancillary or incidental claim being raised by the petitioner/assessee in **-16-** ## **W.P.(C) No.20748/2017** terms of Ext.P3 judgment. The principle of unjust enrichment etc on which the petitioner is relying on has no application to the peculiar facts of this case and the citations relied on by the petitioner. To buttress the said contention, that the Hon’ble Supreme Court never intended refund of amount upon deciding the classification of products and the applicable tax, has taken note of all the averments in this behalf made in I.A.Nos. 7 and 9 in Civil Appeal Nos.1440 of 2010 and rejected the request for clarification/modification. The applications in I.A. Nos. 7 and 9 refers to all circumstances which necessitate clarification of Ext.P3 judgment. Once Ext.P4 order is made by the Apex Court on the very same circumstances or interpretation, this Court ought not to revisit the very same issue and consider granting any of the prayers made by the petitioner. 11. He further contends that paragraph 40 deals with the amount of VAT paid to the State Government and what was paid **W.P.(C) No.20748/2017** **-17-** at that point of time was Value Added Tax and even by plainly reading paragraph 40, the petitioner is not entitled to refund. He further contends that paragraph 41 of Ext.P3 judgment allowed Civil Appeal No.1440 of 2010 with the stipulation that none of the assessee/appellant could be entitled to refund. It means the restriction is on the assessee/appellant and the emphasis is on refund. Paragraph 41 does not restrict refund to VAT, but, to any refund i.e., excess VAT collected or paid by the petitioner. The stipulation in paragraph 41 of Ext.P3 is against the individual assessee/appellant i.e., from refund. Therefore, no assessee/appellant is entitled even to file an application for refund in terms of Ext.P3 judgment. This position once again is reiterated by Ext.P4 order of the Apex Court. The Court in exercise of its jurisdiction under Article 226 of the Constitution cannot or could not add either the suffix or prefix to the words ‘amount of VAT’, ‘assessee/appellant’, ‘refund’ etc. The **W.P.(C) No.20748/2017** **-18-** judgment in Ext.P3 and Ext.P4 order are binding on the parties and there is no scope for interpretation. The effort of petitioner is to shroud the judgment with ambiguity and again revive cause of action in this behalf. Firstly, there is no executable position in Ext.P3 judgment and this Court by reference to general principles of law on refund ought not to expand the scope of Ext.P3 judgment. Such procedure is impermissible. He prays for dismissing the writ petition. 12. I have perused the record and noted the rival contentions. The point for consideration is whether the petitioner is entitled for refund of excess amount paid for the subject assessment years in terms of the judgment in Ext.P3 and/or whether Ext.P4 order gives finality to conclusions recorded in Ext.P3 judgment. 13. The decisions relied on by the petitioner deal with cases where the request for refund is refused on the ground **-19-** ## **W.P.(C) No.20748/2017** that the tax liability is already passed on to the end consumers etc. These decisions would have certainly guided this Court, if judgment in Ext.P3 or order in Ext.P4 are to a different effect. This Court considers the effect of not only the outcome of _lis_ between the parties, but also the final benefit granted by the Apex Court in this behalf. It is apt to examine the entitlement of petitioner exclusively by referring to the judgment (Ext.P3) and order (Ext.P4) which are between the parties instead of applying the ratio or dictum in the decisions relied on by the petitioner. This Court is of the view that the principle laid down by the Apex Court in the decisions referred to above are not helpful to petitioner. 14. Precisely reiterated the case of petitioner is that Ext.P3 judgment has accepted petitioner's contentions that classification of subject products under Residue Entry is illegal and untenable. The petitioner under compelling circumstances **W.P.(C) No.20748/2017** **-20-** paid the excess or difference of VAT to respondents. The incidence of tax or liability thereof was not passed on to end customers. In other words, the petitioner has borne the additional tax burden which is completely avoidable but for the illegal order passed by R3 in 2006. Therefore, the respondents cannot and could not continue to retain the excess amount deposited or paid by the petitioner during the period when litigation was pending on applicable rate of tax. The respondents are legally bound to refund excess or difference of amount paid by petitioner. This Court is required to bear in mind that by applying the general principles of refund the case of petitioner could not be examined. The petitioner is laying its claim only by referring to Ext.P3 judgment with specific reference to the operative portion in paragraphs 40 and 41 already excerpted above. The issue is examined by appreciating Exhibits P3 and P4 and none else. ## **W.P.(C) No.20748/2017** **-21-** 15. Yet another important aspect of the matter is that the petitioner and M/s.M.P.Agencies filed applications for modification/ clarification of Ext.P3 judgment. The stand taken in these I.As is excerpted for immediate reference: “3. During the disputed period, the Applicant sold the products to its distributors such as M/s.M.P. Agencies, by charging VAT @ 4%/5% as applicable during the relevant years. The Applicant filed monthly returns as per the Act and deposited the tax collected with the State Government. … ... 7. It is submitted that during the pendency of appellate proceedings before the lower courts for the disputed period, the Applicant has made deposits against the demand created by the assessment orders in pursuance to recovery notices issued by the Commercial Tax Department and/or directions issued by High Court or appellate authorities. The said amounts have not been collected from the customers to whom the sale was effected. 8. In the subsequent assessment years of 2010-11 to 2014-15 (upto July 2014), the Applicant continued to charge VAT at the rate 4%/5% as applicable, on the sale of the impugned products to its distributors & stockist. However, the alleged differential tax at the rate of 8.5%/9.5% was deposited under protest by the Applicant periodically without collecting the same from the **W.P.(C) No.20748/2017** **-22-** distributors (subsequent dealers). As VAT was charged by the Applicant at the rate of 4%/5% on the invoice, the distributors (subsequent dealers) claimed input tax credit of said amount. The differential amounts paid were not passed on the customers since the Applicant treated the payments to be a deposit during the pendency of the matters before this Hon'ble Court. 9. To maintain uniformity of tax rate in the distribution network, it was mutually agreed between the Applicant, distributors, stockiest and retailers that all dealers in the distribution chain would charge VAT at the rate of 4%/5% only on the sale of the impugned products by them. However, the alleged differential tax of 8.5%/9.5%, depending on the period, was deposited periodically, under protest. The total amounts deposited as above is to tune of Rs.34,24,07,722/- which is tabulated as under: |**Particulars**|**Rs.**| |---|---| |Total amount paid by the applicant<br>towards alleged differential amount|22,79,08,233| |Total amount paid by the distributors<br>towards alleged differential amount<br>demanded by authorities|8,37,05,163| |Total amount paid by the stockist and<br>retailers towards alleged differential tax<br>demand|3,13,80,684| |**Grand Total**|**34,29,94,080**| **W.P.(C) No.20748/2017** **-23-** 10. It is submitted that this Hon'ble Court vide its judgment has set aside the demand of differential tax on the Applicant for the disputed period. Consequently, the retention of amount paid as deposit collected by the department and under the protest to the State Government, which is not collected from the dealers, would be illegal and in violation of Article 265 of the Constitution of India. (emphasis added) 11. It is a settled law that the amounts deposited by a dealer from its own funds without passing the burden to the customers does not attract principles of unjust enrichment, and hence cannot be forfeited to the Government. 12. In view of the aforesaid, it is humbly prayed that Para 40 and 41 of the impugned judgment be suitably modified and appropriate directions be issued to the State Government for refund of all the amount recovered by the department in excess of explicable rate of VAT as decided by this Hon'ble Court to the Applicant and subsequent distributors and stockist. (emphasis added) It is respectfully prayed that this Hon'ble Court may be pleaded to - a) Clarify on the issues raised in the present application; - b) List the interim application before the Hon'ble Court for hearing and grant a personal hearing in the matter; - _c) Pass such other order or orders as this Hon'ble Court may deed fit and proper in the facts and circumstances of the present case._ ” **W.P.(C) No.20748/2017** **-24-** 16. From the averments noted from I.A. Nos.7 and 9 it is clear that the petitioner at the first instance has brought to the notice of the Apex Court that the petitioner paid tax at the rate of 12.5% as against legally payable rate of 4%/5% on the products. The petitioner has not collected the tax from the customers at the rate of 12.5%. The classification issue is now decided by Ext.P3 judgment and applicable rate of tax on the products is 4%/5%. Therefore, the petitioner prayed for directions to respondents to issue refund of the difference amount received by respondents herein in excess of applicable rate of VAT. The prayer, as already noted, is rejected by Ext.P4 order dated 18.01.2016 and order reads thus: “Applications for rectification/modification of Court's judgment dated 18.03.2015 stands rejected.” 17. It is one way of looking at the controversy if it is presented for the first time by way of writ petition in this Court. **W.P.(C) No.20748/2017** **-25-** It is another way to appreciate the claim for refund of petitioner if the very same issue is considered by the Apex Court and relief refused. The case on hand comes in the latter category. This Court is not hastening up to read the order in Ext.P4 and come to a conclusion that the prayer for refund of excess amount is unavailable, but with a view to appreciating the legal effect of _ratio decidendi_ , the observations or directions of the Apex Court, this Court is justified in appreciating the attendant or totality of circumstances which were stated by the petitioner for a positive direction to respondents herein to refund the excess amount collected from the petitioner. Looked at the issue from the above perspective, this Court is of the view that when the Hon’ble Supreme Court while passing orders in Ext.P4 stated that applications for modification/ clarification stand rejected, it means that firstly there is no necessity for clarification and secondly the modification of Ext.P3 judgment ## **W.P.(C) No.20748/2017** **-26-** by issuing necessary directions is not warranted. The word ‘rejected’ is understood to mean _to refuse to believe, accept, or consider (something_ ). Upon due consideration of the undisputed circumstances the prayer for refund of difference of amount cannot be directed by this Court. 18. Ext.P1 is a communication addressed by respondent no.2 to petitioner. Ext.P1 merely adverts to the consequence of Ext.P3 and Ext.P4, judgment and order respectively. The second respondent intimates through Ext.P1 that the Department cannot refund the difference of amount paid. The petitioner could not point out an omission or infirmity by reading Ext.P1 except contending the entitlement of petitioner is dependent on appreciation of Exts.P3 and P4, judgment and order respectively. The understanding of Exts.P3 and P4 in any way than more than what the Apex Court has held in this behalf it virtually amounts to adding additional expression of the final **W.P.(C) No.20748/2017** **-27-** adjudication by the Apex Court. 19. Under these circumstances, this Court in exercise of its jurisdiction under Article 226 of the Constitution ought not to revisit the very same circumstances and grant the prayers as made. The said course if is undertaken by this Court the same amounts to either expressing a view over and above than what the Hon’ble Supreme Court has said in this behalf and amounts to recording, modifying or clarifying paragraphs 40 and 41 in Ext.P3 judgment. The writ remedy for the said purpose is unavailable. Hence the writ petition fails and accordingly dismissed. No order as to costs. Sd/- S.V.BHATTI JUDGE jjj **-28-** ## **W.P.(C) No.20748/2017** ## APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE PHOTOCOPY OF THE LETTER DATED 02.11.2016 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT P2 TRUE PHOTOCOPY OF THE HIGH COURT ORDER DATED 12.04.2011 IN O.T.(REV. NO. 13/2009 - EXHIBIT P3 TRUE PHOTOCOPY OF THE JUDGMENT DATED 18.03.2015 OF THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO. 1440/2010 AND CONNECTED APPEALS. - EXHIBIT P4 TRUE PHOTOCOPY OF THE ORDER DATED 18.01.2016 OF HON'BLE SUPREME COURT IN CIVIL APPEAL NO. 1440/2010 AND CONNECTED APPEALS. - EXHIBIT P5 TRUE PHOTOCOPIES OF THE MONTHLY LETTER FILED INDICATING PAYMENTS MADE BY THE PETITIONER UNDER PROTEST. - EXHIBIT P6 TRUE PHOTOCOPIES OF ORDERS PASSED BY THE APPELLATE AUTHORITIES/STATE VAT TRIBUNAL DATED 28.02.2017 IN T.A.(VAT) NOS.376-378/2013 - EXHIBIT P7 TRUE PHOTOCOPY OF THE LETTER DATED 01.04.2015 ISSUED TO THE 3RD RESPONDENT. - EXHIBIT P8 TRUE PHOTOCOPY OF THE LETTER DATED 029.05.2015 ISSUED BY THE 3RD RESPONDENT. - EXHIBIT P9 TRUE PHOTOCOPY OF THE LETTER DATED 22.08.2016 SUBMITTED BY THE PETITIONER. - EXHIBIT P10 TRUE PHOTOCOPY OF LETTER DATED 03.10.2016 SUBMITTED BY THE PETITIONER. - EXHIBIT P11 TRUE PHOTOCOPY OF THE LETTER DATED 29.10.2016 SUBMITTED BY THE PETITIONER. **-29-** ## **W.P.(C) No.20748/2017** EXHIBIT P12 TRUE PHOTOCOPIES OF THE MODIFIED ORDERS ISSUED BY THE 3RD RESPONDENT. EXHIBIT P13 TRUE PHOTOCOPY OF THE LETTER DATED 05.06.2017 SUBMITTED BY THE PETITIONER. EXHIBIT P14 TRUE PHOTOCOPIES OF THE REVISED REASSESSMENT ORDERS PASSED IN RESPECT OF THE PETITIONER FOR THE ASSESSMENT YEARS 2009-2010 TO 2013-14 & 201415 (APRIL TO JULY) EXHIBIT P15 TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE CHARTERED ACCOUNT DATED 06-05-2015 ALONG WITH STATEMENT EXHIBIT P16 TRUE PHOTOCOPIES OF THE SPECIMEN INVOICES ISSUED BY THE PETITIONER.