Gauhati High Court

WP(C)/6864/2022 on 27 June, 2025

Author: Manish Choudhury

Bench: Manish Choudhury

GAHC010217162022

2025:GAU-AS:8834

THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

W.P.(C) no. 6864/2022

Digboi Carbon Pvt. Ltd., a private limited
company having its Registered Office at
Industrial Estate, Bazaltali P.O. Borgurie, District
- Tinsukia, Assam and its Industrial Unit situated
at Industrial Estate, Bazaltali, P.O. Borgurie,
District - Tinsukia, Assam, Pin - 786125.
.......................Petitioner

-Vs.-

1. The State of Assam represented by the
Commissioner and Secretary to the Government
of Assam, Finance [Taxation] Department,
Assam Secretariat, Dispur, Guwahati - 781006.

2. Deputy Secretary Government of Assam
Finance [Taxation] Department, Assam
Secretariat, Dispur, Guwahati - 781006.

3. Commissioner of Taxes, Assam, Kar
Bhawan, Dispur, Guwahati - 781006.

4. Assistant Commissioner of State Taxes,
Tinsukia, Assam.

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..............Respondents
Advocates :

Petitioner : Dr. A. Saraf, Senior Advocate; Mr. N.N. Dutta;
Mr. P.K. Bora; and Mr. S.J. Saikia, Advocates.
Respondents : Mr. B. Gogoi, Standing Counsel, Finance &
Taxation Department, Assam; and Mr. H.
Baruah, Advocate.
Date of Hearing : 21.01.2025 & 06.03.2025
Date Judgment & Order : 27.06.2025

BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT & ORDER

1. The petitioner, M/s Digboi Carbon Pvt. Ltd. has preferred the instant writ
petition under Article 226 of the Constitution of India seeking setting aside and
quashing of an impugned Order dated 22.09.2022 whereby the respondent no.
3, that is, the Commissioner of Taxes, Assam has rejected reimbursement
proposals of Value Added Tax paid by the petitioner on Raw Petroleum Coke
[RPC] purchased within the State.

2. The petitioner is a private limited company incorporated under the provisions
of the Companies Act, 1956 and it has its Registered Office at Industrial Estate,
Bazaltali, Post Office - Borgurie, District - Tinsukia, Assam. It has an industrial
unit also at Industrial Estate, Bazaltali, Post Office - Borgurie, District -
Tinsukia, Assam where it is engaged in the manufacture of Calcined Petroleum
Coke [CPC].

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3. In order to appreciate the issues raised in this writ petition, the sequence of
events leading to the issuance of the impugned Order dated 22.09.2022 needs
to be delineated, at first.

I. Case projected in the writ petition :-

4. The petitioner has stated that it used to purchase Raw Petroleum Coke [RPC]
within the State of Assam on payment of local taxes and after conversion of
Raw Petroleum Coke [RPC] into Calcined Petroleum Coke [CPC], different
quantities of Calcined Petroleum Coke [CPC] were sold in the course of inter-
State trade or commerce during the Assessment Years under reference and it
paid Central Sales Tax on the sold Calcined Petroleum Coke [CPC] as per the
provisions of the Central Sales Tax Act, 1956 ['the CST Act'] and other
provisions of law in force. It is the case of the petitioner that as per Section
15[b] of the CST Act, where any tax was levied under the local law on the sale
or purchase of any goods of special importance, referred to in Section 14 of the
CST Act, and such goods were subsequently sold in the course of inter-State
trade or commerce and Central Sales Tax was paid thereon, the amount of tax
paid under the local tax law was reimbursable to the dealer paying such local
taxes.

5. The petitioner has projected that during the reference period, the petitioner
purchased Raw Petroleum Coke [RPC] from various refineries in Assam by
paying Value Added Tax [VAT] under the Assam Value Added Tax Act, 2003
['the AVAT Act', for short] and sold the same after converting the purchased
Raw Petroleum Coke [RPC] into Calcined Petroleum Coke [CPC], which was a
commodity declared to be of special importance under the head, 'Coal,
including Coke in its forms', in the course of inter-State trade or commerce.
The petitioner had accordingly complied with the provision of paying the
Central Sales Tax on such Calcined Petroleum Coke [CPC].

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6. It is stated that for the Assessment Year : 2006-2007, the petitioner submitted
its application on 26.04.2010 under Section 50[1] of the AVAT Act read with
Rule 29 of the Assam Value Added Tax Rules, 2005 ['the AVAT Rules', for
short] for refund of a sum of Rs. 34,22,010/- being the local taxes paid on
purchase of Raw Petroleum Coke [RPC] from various refineries within the State
of Assam, it sold the same after converting the same into Calcined Petroleum
Coke [CPC] to various States in the course of inter-State trade or commerce
and the Central Sales Tax was paid on such inter-State sales.

6.1. It is stated that for the Assessment Year : 2007-2008, the petitioner submitted
its application on 26.04.2010 under Section 50[1] of the AVAT Act read with
Rule 29 of the AVAT Rules for refund of a sum of Rs. 58,94,502/- being the
local taxes paid on purchase of Raw Petroleum Coke [RPC] from various
refineries within the State of Assam, which was subsequently sold after
converting the same into Calcined Petroleum Coke [CPC] to various States
through inter-State trade or commerce and the Central Sales Tax was paid on
such inter-State sales.

6.2. It is stated that for the subsequent Assessment Years : 2008-2009, 2009-2010
and 2010-2011, the petitioner submitted its applications on 26.04.2010,
10.04.2010 and 08.05.2011 respectively for refund of sums of Rs. 75,22,550/-,
Rs. 69,44,147/- and Rs. 87,44,145/- respectively which sums were paid as local
taxes on purchase of Raw Petroleum Coke [RPC] from various refineries within
the State of Assam. The Raw Petroleum Coke [RPC] were converted to
Calcined Petroleum Coke [CPC] and thereafter, Calcined Petroleum Coke [CPC]
was sold to various States through inter-State trade or commerce and the
Central Sales Tax was paid on such inter-State sales.

6.3. The petitioner has further stated that the Assessing Authority completed that
audit assessment of the petitioner for the Assessment Years : 2006-2007 to
2008-2009 under the AVAT Act vide Orders of Assessment dated 10.03.2012.

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The petitioner has stated that no order with regard to its refund claims
submitted under Section 15[b] of the CST Act were made at the time of audit
assessments.

6.4. It is further stated that for the Assessment Year : 2011-2012, the petitioner
submitted its application on 01.08.2012 for refund of a sum of Rs.
1,60,44,182/- being the local taxes paid on purchase of Raw Petroleum Coke
[RPC] within the State of Assam, and refund claim was made after selling
Calcined Petroleum Coke [CPC] converted from purchased Raw Petroleum Coke
[CPC] to various States in the course of inter-State trade or commerce after
paying the Central Sales Tax on such inter-State sales.

6.5. It is stated that in the meantime, the Assessing Authority completed the audit
assessments of the petitioner-dealer for the Assessment Years : 2009-2010 to
2013-2014 under the AVAT Act vide Orders of Assessment, dated 03.03.2015 &
dated 03.09.2015 respectively. The petitioner has stated that no decisions with
regard to its refund claim submitted under Section 15[b] of the CST Act were
made, like in other audit assessment proceedings.

6.6. The petitioner has stated that for the Assessment Year : 2012-2013, the
petitioner submitted its application on 23.12.2015 under Section 50[1] of the
AVAT Act read with Rule 29 of the AVAT Rules for refund of a sum of Rs.
1,37,10,067/- being the local taxes paid on purchase of Raw Petroleum Coke
[RPC] from various refineries within the State of Assam. The petitioner has
stated that after converting the same into Calcined Petroleum Coke [CPC], it
was sold to various States through inter-State trade or commerce and the
Central Sales Tax was paid on such inter-State sales.

6.7. It is further stated that for the Assessment Year : 2013-2014, the petitioner
submitted its application on 23.12.2015 under Section 50[1] of the AVAT Act
read with Rule 29 of the AVAT Rules for refund of a sum of Rs. 1,27,71,331/-

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being the local taxes paid on purchase of Raw Petroleum Coke [RPC] within the
State of Assam. The petitioner has stated that after converting the purchased
Raw Petroleum Coke [RPC] into Calcined Petroleum Coke [CPC], it was sold to
various States through inter-State trade or commerce and Central Sales Tax
was paid on such inter-State sales.

6.8. It is also stated that for the Assessment Year : 2014-2015, the petitioner
submitted its application on 23.12.2015 for refund of a sum of Rs.
1,47,23,531/- being the local taxes paid on purchase of Raw Petroleum Coke
[RPC] from various refineries within the State of Assam. It is stated that after
converting the purchased Raw Petroleum Coke [RPC] into Calcined Petroleum
Coke [CPC], Calcined Petroleum Coke [CPC] was sold to various States through
inter-State trade or commerce paying Central Sales Tax on such inter-State
sales.

7. The petitioner has asserted that since the refund applications submitted earlier
for the Assessment Years : 2009-2010, 2010-2011 and 2011-2012 were not
available in the records of the Assessing Authority, the petitioner was
requested to re-submit the said applications by the Assessing Authority.
Accordingly, the petitioner re-submitted the refund applications for the
Assessment Years : 2009-2010, 2010-2011 and 2011-2012 on 23.12.2015. On
23.12.2015, the petitioner also submitted the refund applications for the
Assessment Years : 2012-2013, 2013-2014 and 2014-2015, as already
mentioned hereinabove.

8. The petitioner has claimed that it submitted its claims for the refund of the
taxes paid on the purchase of Raw Petroleum Coke [RPC] within the State
which after conversion into Calcined Petroleum Coke [CPC] was sold in the
course of inter-State trade or commerce and the tax was paid thereon under
the CST Act. According to the petitioner, the refund applications were
submitted under Section 50[1] of the AVAT Act read with Rule 29 of the AVAT

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Rules claiming refunds as per the provisions of Section 15[b] of the CST Act.
According to the petitioner, Section 15[b] of the CST Act had provided that
where any tax was levied under the local law on the sale or purchase of any
declared goods referred to under Section 14 of the CST Act and such declared
goods were subsequently sold in the course of inter-State trade or commerce,
then the amount of tax paid under the local tax law was reimbursable to the
dealer paying such taxes.

9. The petitioner has averred that in the refund applications, it was substantiated
that the petitioner purchased Raw Petroleum Coke [RPC] from various
refineries by paying Value Added Tax during the reference period and sold the
same after converting it into Calcined Petroleum Coke [CPC] which had been a
declared commodity within the phrase, 'Coke in all its forms' in the course of
inter-State trade or commerce. However, the respondent authorities did not
process the refund applications inspite of the claims made by the petitioner as
per the procedure.

10. It is stated that the petitioner also submitted its applications on 10.01.2017,
29.07.2017 and 29.07.2017 under Section 50[1] of the AVAT Act read with
Rule 29 of the AVAT Rules for the Assessment Years : 2015-2016, 2016-2017
and 2017-2018 [April, 2017 to June, 2017] respectively for refund of sums of
Rs. 1,02,45,820/-, Rs. 1,29,37,601/- and Rs. 48,10,455/- respectively being
the local taxes paid on purchase of Raw Petroleum Coke [RPC] from various
refineries within the State of Assam. After conversion, Calcined Petroleum Coke
[CPC] was sold to various States through inter-State trade or commerce and
the Central Sales Tax was paid on such inter-State sales.

11. From the above projection, it has emerged that the petitioner submitted its
applications seeking refund on the dates for the sums mentioned; and from the
documents of the respondents, it has emerged that audit assessments were
completed on the dates mentioned; in the following Table-I :-

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TABLE- I
Assessment Year Application Date Refund Claimed Assessment Date
2006-2007 26.04.2010 Rs. 34,22,010/- 10.03.2012
2007-2008 26.04.2010 Rs. 58,94,902/- 10.03.2012
2008-2009 26.04.2010 Rs. 75,22,550/- 10.03.2012
2009-2010 10.04.2010 Rs. 69,44,147/- 03.03.2015
2010-2011 08.05.2011 Rs. 87,44,145/- 30.09.2015
2011-2012 01.08.2012 Rs. 1,60,44,182/- 30.09.2015
2012-2013 23.12.2015 Rs. 1,37,10,067/- 30.09.2015
2013-2014 23.12.2015 Rs. 1,27,71,331/- 30.09.2015
2014-2015 23.12.2015 Rs. 1,47,23,531/- -------------
2015-2016 10.01.2017 Rs. 1,02,45,820/- -------------
2016-2017 29.07.2017 Rs. 161,29,37,601/- -------------
2017-2018 29.07.2017 Rs. 48,10,455/- -------------

12. Section 36 of the AVAT Act has provided for Audit Assessment. In sub-section
[1] of Section 36, the reasons for which Audit Assessment can be undertaken
are mentioned in sub-clauses [a], [b], [c] and [d]. Sub-rule [1] of Rule 22 :
'Audit Assessment' of the AVAT Rules has enumerated the categories of cases
from Clause [i] to Clause [xi] in respect of which Audit Assessments can be
taken up under Section 36 of the AVAT Act.

13. The petitioner has further stated that after the decision dated 12.01.2017
passed in Civil Appeal no[s]. 5518-5519 of 2013 [the State of Assam & others
vs. M/s Guwahati Carbon Ltd. & another etc.] by the Hon'ble Supreme Court,
the petitioner submitted a Letter to the Assistant Commissioner of Taxes,
Tinsukia on 26.07.2017 requesting to reimburse the amount of Value Added
Tax paid on the purchase of Raw Petroleum Coke [RPC] made within the State
during the period from 2006-2007 to 2015-2016 amounting to Rs.

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9,98,37,161/- along with simple interest @ 10% per annum accrued from the
date of submission of the refund applications. Along with the Letter dated
26.07.2017, the copies of various Orders passed by this Court and the Hon'ble
Supreme Court were also furnished.

14. It is stated that the Assessing Authority had thereafter, passed Assessment
Orders on 12.06.2018, 15.06.2018, 22.06.2018 and 25.06.2018 for different
assessment years under Section 42 of the AVAT Act, thereby, completing re-
assessment of the petitioner and determining the sums refundable to the
petitioner for taxes paid on the purchase of Raw Petroleum Coke [RPC] within
the State along with interest due thereon. The details of the Orders of
Assessment passed under Section 42 of the AVAT Act and the sums
determined as refundable are as under :-

TABLE-II
Assessment Date of Taxes paid on Interest Amount
Year Order RPC refundable
2006-2007 12.06.2018 Rs. 34,22,010/- Rs.1,65,944/- Rs. 50,81,450/-
2007-2008 12.06.2018 Rs. 58,94,502/- Rs. 28,58,430/- Rs. 87,52,932/-
2008-2009 15.06.2018 Rs. 75,22,553/- Rs. 36,47,923/- Rs. 1,11,70,476/-
2009-2010 15.06.2018 Rs. 69,44,147/- Rs. 33,67,436/- Rs. 1,03,11,583/-
2010-2011 22.06.2018 Rs. 87,44,145/- Rs. 42,40,311/- Rs. 1,29,84,456/-
2011-2012 22.06.2018 Rs. 1,60,44,182/- Rs. 77,80,329/- Rs. 2,38,24,511/-
2012-2013 25.06.2018 Rs. 1,37,10,067/- Rs. 26,70,646/- Rs. 1,63,80,713/-
2013-2014 26.06.2018 Rs. 1,27,71,331/- Rs. 24,87,785/- Rs. 1,52,59,116/-

15. The Joint Commissioner of State Taxes, Assam, O/o the Commissioner of State
Tax, Assam vide an Office Letter no. CTS-1/19/33 dated 20.09.2019 wrote to
the petitioner with regard to the petitioner's claim for reimbursement of the

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Value Added Tax paid for purchase of Raw Petroleum Coke [RPC] for the
Assessment Years : 2006-2007 to 2011-2012 under Section 15[b] of the CST
Act pursuant to the Hon'ble Supreme Court's Order and with regard to the
claim for payment of simple interest @ 10% per annum pursuant to the interim
Order of the Hon'ble Supreme Court. By the Office Letter dated 20.09.2019,
the petitioner was asked to furnish an 'undertaking' by way of an affidavit to
the effect that the petitioner would have no further claim towards interest
other than simple interest @ 10% per annum claimed by the petitioner from
12.07.2013 till the final Assessment Orders, in order to process the petitioner's
claim of reimbursement and interest on such amount.

16. In response to the above Office Letter dated 20.09.2019, the petitioner
submitted an undertaking by way of an affidavit, as sought for by the Joint
Commissioner of State Taxes of Assam, to the effect that the petitioner shall
have no further claim for interest other than simple interest @ 10% per annum
from 12.07.2013 as per the interim Order of the Hon'ble Supreme Court.

17. Thereafter, the Commissioner of Taxes, Assam [the respondent no.3] vide an
Office Letter no. CTS-1/2019/33 dated 25.10.2019 wrote to the Deputy
Secretary to the Government of Assam, Finance [Taxation] Department [the
respondent no. 2] submitting a proposal for reimbursement of an amount of
Rs. 50,81,450/- for the Assessment Year : 2006-2007 and to accord approval
for sanctioning the said amount to the dealer, that is, the petitioner on account
of local taxes paid on purchase of Raw Petroleum Coke [RPC] in terms of the
provisions of Section 15[b] of the CST Act and also in compliance of the Orders
of the Hon'ble Supreme Court and the views and opinion expressed by the
Legal Remembrancer, Assam. The respondent no. 3 vide other Office Letters,
dated 25.10.2019 and dated 23.12.2019, submitted similar proposals to the
Government for reimbursement for different Assessment Years with the
request to accord approval to those proposals by the Government.

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18. The details of the Office Letters, Assessment Years and the amounts for which
reimbursement proposal were submitted by the respondent no. 3 to the
Government for approval are as under :-

Table-III
Office Letter no. Assessment Year Date Amount [in Rs.]
CTS-1/2019/33 2006-2007 25.10.2019 Rs. 50,81,450/-
CTS-2/2019/17 2007-2008 25.10.2019 Rs. 87,52,932/-
CTS-3/2019/16 2008-2009 25.10.2019 Rs. 1,11,70,476/-
CTS-4/2019/17 2009-2010 25.10.2019 Rs. 1,03,11,583/-
CTS-5/2019/17 2010-2011 25.10.2019 Rs. 1,29,84,456/-
CTS-6/2019/17 2011-2012 25.10.2019 Rs. 2,38,24,511/-
CTS-7/2019/19 2012-2013 23.12.2019 Rs. 1,63,80,713/-
CTS-8/2019/19 2013-2014 23.12.2019 Rs. 1,52,59,116/-

19. The petitioner has contended that inspite of forwarding of the reimbursement
proposals by the respondent no. 3 to the Government for sanctioning the
amounts of reimbursement to the petitioner on account of the Value Added Tax
amounts paid on purchase of Raw Petroleum Coke [RPC] within the State in
terms of the provision of Section 15[b] of the CST Act and in compliance of the
Orders of the Hon'ble Supreme Court and the Opinion of the Legal
Remembrancer, Assam, the reimbursement proposals were not processed
further for near about three years.

20. Thereafter, the petitioner was served with an Office Letter no. 3753 dated
12.10.2022 of the Assistant Commissioner of Taxes, Tinsukia [the respondent
no. 4] enclosing therewith an Order no. CTS-1/2019/58 dated 22.09.2022 of
the Commissioner of Taxes, Assam [the respondent no. 3] and it was informed
that the applications of the petitioner for reimbursement for the Assessment
Years : 2006-2007 to 2013-2014 have been rejected by the respondent no. 3.

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II. Reliefs sought :-

21. Aggrieved by the impugned Order no. CTS-1/2019/58 dated 22.09.2012 of the
Commissioner of Taxes, Assam [the respondent no. 3], the petitioner has
invoked the extra-ordinary jurisdiction of this Court under Article 226 of the
Constitution by the present writ petition seeking the following reliefs :-

In the aforesaid premises it is therefore prayed that your Lordship
would graciously be pleased to admit this petition, call for the records
and issue Rule, calling upon the Respondents to show cause as to
why writ in the nature of Certiorari and / or a writ of like nature should
not be issued setting aside and / or quashing the impugned order
dated 22.09.2022 passed by the Commissioner of Taxes, Assam,
respondent No. 3, rejecting the refund proposals of the petitioner for
the AY 2006-07 to 2013-14 and as to why the impugned action of the
Respondent Authorities in not disbursing the claim of the Petitioner
Company on account of refund under Section 15[b] of the Central
Sales Tax Act, 1956 for AY 2006-07 to 2013-14 should not be
declared illegal, without jurisdiction and as to why a writ in the nature
of Mandamus and/or a writ of like nature should not be issued
directing the Respondents to forthwith disburse the claims of the
Petitioner along with interest on account of refund under Section 15[b]
of the Act of 1956 for AY : 2006-07 to 2013-14 on the basis of the
proposal forwarded by the then Commissioner of Taxes, Assam, to
the Government for sanctioning and/or as to why a writ in the nature of
Mandamus and/or a writ of like nature should not be issued directing
the Respondents to process the remaining claims for refund under
Section 15[b] of the Act of 1956 for AY 2014-15, 2015-16, 2016-17
and 2017-18 and further disburse the claim, along with interest,

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forthwith and and/or after hearing the parties, cause or causes that
may be shown, if any, by the parties, after perusal of the records of
the case, make the Rule absolute and/ or pass such further
order/orders as Your Lordships' may deem fit and proper.

22. I have heard Dr. A. Saraf, learned Senior Counsel assisted by Mr. P. Baruah,
Mr. N.N. Dutta, Mr. P.K. Bora & Mr. S.J. Saikia, learned counsel for the
petitioner; and Mr. B. Gogoi, learned Standing Counsel, Finance & Taxation
Department, Assam assisted by Mr. H. Baruah, learned counsel for all the
respondents.

III. Submissions of the petitioner :-

23. Dr. Saraf, learned Senior Counsel appearing for the petitioner has extensively
referred to the relevant provisions in the CST Act, the AVAT Act and the AVAT
Rules as well as the litigation history on the issues whether Petroleum Coke
would fall within the phrase, 'Coal, including Coke in all its forms' appearing
Section 14 of the CST Act; and whether Raw Petroleum Coke [RPC] and
Calcined Petroleum Coke [CPC], which are characteristically different
commodities, would fall within the phrase, 'Coal, including Coke in all its forms'.
Then, he has submitted that it was also well settled even before the
assessment proceedings for the reference period that both Raw Petroleum
Coke [RPC] and Calcined Petroleum Coke [CPC] were included within Coke or
Petroleum Coke which, in turn, falls within the ambit of the phrase, 'Coal,
including Coke in all its forms'. Such a position was subsisting since 18.08.1971
when the Hon'ble Supreme Court rendered the decision in Civil Appeal no.
1612 of 1968 : India Carbon Ltd. vs. Superintendent of Taxes, reported in
[1971] 3 SCC 612, and the position continued till the decision in Civil Appeal
no[s]. 5518-5519 of 2013 : The State of Assam vs. M/s Guwahati Carbon Ltd.
and another etc., rendered on 12.01.2017, and thereafter. The same position
was clarified by this Court also on 16.12.1991 in Civil Rule no. 163 of 1987 :
M/s India Carbon and others vs. State of Assam and others , reported in

Page 13 of 65
[1992] 1 GLR 82 [DB]. It was the State of Assam who despite the settled
position of law once again took the matter to the Hon'ble Supreme Court in
Civil Appeal no[s]. 5518-5519 of 2013.

23.1. Learned Senior Counsel has further submitted that if a dealer purchased Raw
Petroleum Coke [RPC] within the State of Assam by paying Value Added Tax
levied under the AVAT Act and sold the same after converting the purchased
Raw Petroleum Coke [RPC] into Calcined Petroleum Coke [CPC], which was
also a declared commodity under the phrase, 'Coal, including Coke in all its
forms', in the course of inter-State trade or commerce and the dealer had paid
Central Sales Tax under the CST Act on such sold Calcined Petroleum Coke
[CPC], then the dealer would be entitled to get reimbursement of the Value
Added Tax amount paid on intra-State purchase of declared goods, that is,
Raw Petroleum Coke [RPC] under the provisions of Section 15[b] of the CST
Act. Such a claim for reimbursement is to be processed under Section 50 of the
AVAT Act read with Rule 29 of the AVAT Rules. In case of delay in processing
reimbursement, statutory interest is to be paid in terms of Section 52 of the
AVAT Act.

23.2. It is contended that the impugned Order dated 22.09.2022 passed by the
Commissioner of Taxes, Assam is contrary to the earlier reimbursement
proposals submitted by the then Commissioner of Taxes, Assam on 25.10.2019
/ 23.12.2019 approving the amounts of refund for the Assessment Years :
2006-2007 to 2013-2014. The impugned Order is also not in conformity with
the decisions of the Hon'ble Supreme Court as well as of this Court and the
same is also contrary to the opinion of the Legal Remembrancer. The act of
rejection of the petitioner's claim for reimbursement for the Assessment Years :
2014-2015 to 2017-2018 in the afore-state manner is illegal, and without
jurisdiction.

23.3. It is further contended on behalf of the petitioner that the respondent no. 3
has acted arbitrarily and illegally in rejecting the claims for reimbursement of

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local taxes paid on the purchase of Raw Petroleum Coke [RPC] within the State
vide the impugned Order without considering the fact that claims for
reimbursement for the Assessment Years : 2006-2007 to 2013-2014 were duly
forwarded by his predecessor-in-office to the State Government for according
approval. The impugned Order is an order apparently passed exercising power
of review. The respondent no. 3 has no authority and jurisdiction to reverse its
earlier decision to reject the claims for reimbursement of the petitioner on
extraneous and irrelevant considerations reviewing his own order.

23.4. Dr. Saraf has further contended that the statute has not conferred any power
of review on the Commissioner of Taxes, that is, the respondent no. 3 and
therefore, the respondent no. 3 has no power and jurisdiction to review his
earlier orders. The respondent no. 3 has acted arbitrarily and illegally in not
referring to its earlier decisions taken on 25.10.2019/23.12.2019, by which
proposals for grant of refund due to the petitioner on account of local taxes
paid on the purchase of Raw Petroleum Coke [RPC] within the State were sent
to the Government for approval.

23.5. It is submitted that the law declared by the Supreme Court under Article 141 of
the Constitution of India is binding on all in the country and when a law has
been declared by the Hon'ble Supreme Court, it is duty of all the High Courts
and other authorities including the taxing authorities to act in accordance with
the law declared. It is immaterial whether a person was a party to a case
before the Hon'ble Supreme Court. The respondent no. 3 has also failed to
consider the fact that it was the State of Assam which, despite the law declared
and in force since long, had preferred the appeals, Civil Appeal no[s]. 5518-
5519 of 2013 which were finally dismissed on 12.01.2017. In support of such
contentions, a decision of the Hon'ble Supreme Court in M.S.L. Patil,
Assistant Commissioner of Forests, Solarpur [Maharashtra] and others vs.
State of Maharashtra and others, [1996] 11 SCC 361, has been referred to.

23.4. It is further contended that Section 15[b] of the CST Act was an independent
provision and a claim for reimbursement can be processed only when a person

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had paid local taxes on declared goods and the said declared goods were sold
in the course of inter-State trade or commerce by paying Central Sales Tax
thereon. It was only after completion of assessment the Assessing Authority,
on filing of a claim for reimbursement of taxes under Section 15[b] of the CST
Act, had to verify whether the dealer was entitled for reimbursement. The
reason for which all the proposals of reimbursement of the petitioner were kept
pending had been mentioned in the proposals dated 25.10.2019/23.12.2019
and therefore, a different view could not have been taken subsequently.

23.5. It is the contention of the petitioner that there was no reason to assail the
original orders of assessment as the petitioner was not aggrieved with those
original orders of assessment. Since the proceedings for reimbursement of the
local taxes paid as per Section 15[b] of the CST Act was an independent
proceeding which had to be undertaken after completion of assessment, the
finding recorded in the impugned Order that the petitioner did not challenge
the original orders of assessment passed in the year 2012 for the Assessment
Years : 2006-2007 to 2008-2009 and passed in the year 2015 for the
Assessment Years : 2009-2010 to 2013-2014 is clearly illegal, arbitrary and
irrational.

23.6. It is further contended that the re-assessment proceedings were completed in
the year 2018 by the Assessing Authority under Section 42 of the AVAT Act and
the orders passed were appealable orders under Section 79 of the AVAT Act.
Therefore, it was open for the State to file appeals. But, as the State opted not
to file appeals, those orders, therefore, attained finality and after a lapse of
nearly four years, it is not open for the respondent no. 3 to take a view that
the re-assessment orders passed in the year 2018 by the Assessing Authority
were outside the jurisdiction and void. It is also not open for the respondent
no. 3 to observe so when the very same authority had acted on and proceeded
further on the basis of those assessment/re-assessment orders. He has further
pointed out that the claim for reimbursement of the petitioner were not
rejected at any point in time and therefore, the question of filing any appeal or

Page 16 of 65
review against the original Orders of Assessment by the petitioner did not
arise.

23.7. In support of the above submissions, the decisions in Assistant
Commissioner, Income Tax, Rajkot vs. Saurashtra Kutch Stock Exchange
Limited, [2008] 14 SCC 171, and Naresh Kumar and others vs. Government
[NCT of Delhi], [2019] 9 SCC 416, have also been referred to.

IV. Submissions of the respondents :-

24. Mr. Gogoi, learned Standing Counsel, Finance & Taxation Department for the
State respondents has, during the course of his submissions, reiterated the
stand taken in the affidavit-in-opposition filed on behalf of the State
respondents, which would be alluded to in a later part.

24.1. It is contended that the Assessing Authority could not have acted under
Section 42 of the AVAT Act in respect of the case of the petitioner as there was
no order from any court or tribunal. Therefore, the re-assessment orders
passed exercising power under Section 42 of the AVAT Act were void and the
further proceedings taken on the basis of those orders were also void, being
not permissible.

24.2. As the proposals for reimbursement sent earlier by the then Commissioner of
Taxes were fraught with a number of infirmities, it was deemed proper for the
Commissioner of Taxes to pass the Order, assailed herein, to remove those
infirmities. Therefore, it is not open for the petitioner to lay any challenge to
the Order dated 22.09.2022.

24.3. It is his further contention that it is not open for the petitioner to seek support
from the decision in Civil Appeal no[s]. 5518-5519 : The State of Assam and
others vs. M/s Guwahati Carbon Ltd. and others , delivered on 12.01.2017,
for the reason that the petitioner was not a party therein. The petitioner
cannot be permitted to re-agitate its claim for reimbursement as the petitioner
had not pursued the claims for a substantially long period of time and was

Page 17 of 65
sitting on the fence waiting for the outcome of proceedings initiated by others.
There was inordinate delay in pursuing the claims. In such view of the matter
the case of the petitioner has suffered from delay and laches as well as from
acquiescence. The decision in M/s Rup Diamonds and others vs. Union of
India and others, [1989] 2 SCC 356 has been referred to and relied upon in
support of such submissions.

24.4. On the point that parity cannot be claimed by a party if its claim has suffered
from delay and laches and the party has acquiesced after knowing rejection of
its claim, the decision in State of Uttar Pradesh and others vs. Arvind Kumar
Srivastava and others, [2015] 1 SCC 347.

V. Reply submissions of the petitioner :-

25. In response to the submissions made on behalf of the respondents that the re-
assessment orders were passed unauthorizedly under Section 42 of the AVAT
Act, Dr. Saraf has submitted that if re-assessment orders were found to be
unauthorized qua Section 42 of the AVAT Act then it was the Revenue which
ought to have challenged the same, not the petitioner. He has submitted that
since the jurisdictional Assistant Commissioner of Taxes had passed the re-
assessment orders exercising the power delegated to him by the Commissioner
of Taxes the same authority could not have criticized them as an appellate
authority to pass the impugned Order instead of preferring an appeal under
Section 79 of the AVAT Act itself.

26. I have duly considered the submissions advanced by the learned counsel for
the parties and have also gone through the materials brought on record by the
parties through their pleadings. I have also gone through the decisions cited by
the learned counsel for the parties in support of their respective submissions
besides the statutory provisions referred to by them.

VI. Discussion and Analysis :-

Page 18 of 65
27. The present writ petition has been heard together with a batch of six other writ
petitions [W.P.[C.] no. 388/2023, W.P.[C.] no. 412/2003, W.P.[C.] no.
413/2023, W.P.[C.] no. 414/2023, W.P.[C.] no. 415/2023 & W.P.[C.] no.
416/2023] on projection that there are common issues involved in all of them.
The common issues are with regard to the matter of purchasing Raw
Petroleum Coke [RPC] within the State of Assam on payment of local taxes and
the validity of the claim for reimbursement if after conversion of Raw
Petroleum Coke [RPC] into Calcined Petroleum Coke [CPC], the dealer sold the
Calcined Petroleum Coke [CPC] in the course of inter-State trade or commerce
paying taxes on such sold Calcined Petroleum Coke [CPC] as per the provisions
of the CST Act. However, the factual matrix leading to the passing of the
impugned Order dated 22.09.2022 in this writ petition is different from the
factual matrices leading to the impugned Orders involved in the other batch of
writ petition. For the said reason, it is found proper to dispose of the present
writ petition by a separate judgment.

28. To understand the nature of assail, it would be beneficial to reproduce the
relevant excerpts from the Order no. CST-1/2019/58 :-

Government of Assam
Office of the Commissioner of Taxes::Assam
Kar Bhawan::Dispur::Guwahati-6

ORDER

Dated : Dispur the 22nd of Sep, 2022

No: CTS-1/2019/58 : The refund proposal of M/s Digboi Carbon Pvt. Ltd. Tinsukia, for the years 2006-07 to 2013-14, under the Assam Valued Added Tax Act, 2003 have been perused in detail along with the case records and the findings are as below :

* * * * *

From the above discussions, I do not have any hesitation to hold that :

[i] The re-assessments made in 2018 by the jurisdiction assessing officer in purported exercise of the powers under section 42 of the AVA Act, 2003 are outside the jurisdiction and hence void and deprived of any legal effect. Further, as per provisions of Section 39 of the AVAT Act the assessment after the expiry of five years from the end of the assessment year becomes time barred.

[ii] The original assessments made by the jurisdictional Deputy Comm. of Taxes, Tinsukia and Superintendent of Taxes, Tinsukia did not allow the claim of the dealer for reimbursement of VAT under section 15[b] of the CST Act and the dealer did not challenge such assessment orders passed in 2012 for the asst. years 2006-07 to 2008-09 and passed in 2015 for the asst. years 2009-10 to 2013-14. Hence, such assessment orders passed way back had attained finality on expiry of the period of appeal and revision.

[iii] M/s Digboi Carbon Pvt Ltd. was never a party in Civil Appeal No(s) 5518-5519 of 2013 before the Hon'ble Supreme Court. The dealer acted like fence-sitter and the dealer did nothing to keep his claim alive by approaching any statutory / appropriate forum. They never challenged the non-allowance of the reimbursement claim in the original assessment orders made by the DCT, Tinsukia Zone and Superintendent of Taxes, Tinsukia before any forum - appeal, revision, ABR or Hon'ble High Court. Therefore, the laches and delays, and the

acquiescence would be valid grounds to dismiss their claim of reimbursement.

In view of the foregoing reasons, the refund proposals of M/s Digboi Carbon Pvt. Ltd. Tinsukia, for the years 2006-07 to 2013-14, under the Assam Valued Added Tax Act, 2003 are hereby rejected.

Sd/-

Commissioner of Taxes, Assam Dispur, Guwahati-6

29. An affidavit-in-opposition on behalf of the respondent no. 3 has been filed through the Deputy Commissioner of Taxes, Assam regarding refusal of the reimbursement proposals. In the said affidavit-in-opposition, it is averred that the respondent no. 4 as the Assessing Officer invoked Section 42 of the AVAT Act for the purpose of re-assessment, which ex-facie has a limited application.

It has been stated that Section 42 can be invoked to correct a situation if an assessment by mistake is made under the CST Act instead of AVAT Act or vice versa and a court passes an order to that effect. Thus, it is difficult to comprehend that re-assessment under Section 42 can be done in all situations just to give effect to any order of the court.

29.1. It has been further stated that the assessment for the periods under reference have become time-barred and the re-assessments made were null and void ab- initio. Further, the original assessments made by the jurisdictional authorities did not allow the claim of the dealer for reimbursement of Value Added Tax made under Section 15[b] of the CST Act read with Section 50 of the AVAT Act. As the dealer did not challenge those original assessment orders, the original assessment orders had attained finality on expiry of the period of appeal and revision.

29.2. The petitioner falls in the category of persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after a long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such persons cannot claim the benefit of the judgment rendered in the case of similarly situated persons to be extended to them. These category of persons are to be treated as fence-sitters and laches and delays, and/or acquiescence, would be a valid ground to dismiss their claim. Moreover, the petitioner was not a party in the cases either before the Hon'ble Supreme Court or before the High Court.

29.3. It is further contended that the proposals for the refund were submitted by the then Commissioner of Taxes to the Government for prior approval as per Section 50 of the AVAT Act read with Section 29 of the AVAT Rules. The question of review of any order arises only when an order has actually been passed. In the present case, the then Commissioner of Taxes had only recommended the refund proposals to the Government and the same cannot be construed as passing of an order. In the absence of any approval from the Government, refund sanction orders were not passed by the Commissioner of Taxes and therefore, there is no question of review of any order. It is further contended that even the recommendation of the then Commissioner of Taxes was on the basis of re-assessment orders passed under Section 42 of the AVAT Act, which was without jurisdiction.

29.4. The Order dated 12.01.2017 passed by the Hon'ble Supreme Court in Civil Appeal no[s]. 5518-5519 of 2013 was in respect of an appeal filed by the Government of Assam against an order of this Court passed in the writ petitions, W.P.[C] no. 4586/2008 and W.P.[C] no. 6646/2010 in which the petitioner was not a party. Therefore, the petitioner acted like a fence-sitter and is trying to claim the benefit of the judgment rendered in the case of similarly situated persons.

29.5. It is further contended that the speaking order rejecting the refund proposals of the petitioner for the Assessment Years : 2006-2007 to 2013-2014 under the AVAT Act is self-explanatory.

31. It is settled that when a statutory authority makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. A consideration would, however, be made on the additional reasons indicated, if any, wherever necessary.

31. From the impugned Order and the stand taken in the affidavit-in-opposition, the rejection of the refund proposals has been found to be made on the following common grounds :-

[i] The re-assessments made by the jurisdictional Assessing Officer in purported exercise of the powers under Section 42 of the AVAT Act are outside the jurisdiction and as per provisions of Section 39 of the AVAT Act, assessments made after the expiry of five years from the end of the Assessment Year would become time-barred.

[ii] In the original assessments, the jurisdictional Assessing Authority did not allow the claim of the petitioner for reimbursement under Section 15[b] of the CST Act and the petitioner did not challenge such assessment orders passed and as a result, those assessment orders had attained finality on expiry of the period of limitation for appeal and/or revision.

[iii] The petitioner was not a party in the proceedings of Civil Appeal no[s].

5518-5519 of 2013 before the Hon'ble Supreme Court. The petitioner acted like a fence-sitter and it did not do anything to keep its claim alive by approaching any statutory/appropriate forum for not allowing the

reimbursement claim in the original assessment orders by the jurisdictional Assessing Authority. Therefore, on the ground of laches and delays, and acquiescence, the petitioner's claim for reimbursement had rightly been dismissed.

[iv] The refund proposals were earlier submitted by the then Commissioner of Taxes, Assam to the Government for prior approval as per Section 50 of the AVAT Act read with Rule 29 of the AVAT Rules. The order subsequently passed by the Commissioner of Taxes, Assam on 22.09.2022 is not an order which reviewed the earlier act of submission of refund proposals by the then Commissioner of Taxes, Assam, for approval.

32. It is relevant to mention that the petitioner was issued an Eligibility Certificate [EC] vide EC no. AIDC/US/EC/388/05/47 on 29.05.2008 by the Industries Department making the petitioner eligible to avail tax incentives for a period of nine years from 14.11.2006 to 13.11.2015, subject to a ceiling of Rs. 1045.85 lakh being 100% of fixed capital investment. The State respondents had also issued a Certificate of Entitlement [CE] on the basis of the Eligibility Certificate [EC] vide EC no. C07TSK/IC/03301 on 24.10.2008 with validity from 14.11.2006 to 13.11.2015 and the Certificate of Entitlement [CE] was, later on, renewed. The petitioner industrial unit undertook further expansion by making an additional investment of Rs. 484.87 lakh and the industrial unit was granted another Eligibility Certificate [EC] for tax remission for a period of seven years from 19.04.2011 to 18.04.2018 for Rs. 436.38 lakh being 90% of the additional investment.

VII. The provisions in the Constitution of India, the Central Sales Tax Act, 1956 and the Assam Value Added Tax Act, 2003

33. As certain statutory provisions and decisions of this Court as well as the Hon'ble Supreme Court are at the forefront of the present lis on the basis of which the petitioner has claimed refunds [reimbursement] and the refund claims have been rejected by the State respondents, and the issue is also simultaneously related with the treatment of Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC] as goods of special importance under the CST Act, reference to those provisions appears apposite at the inception.

34. Clause [3] of Article 286 of the Constitution of India was omitted by the Constitution [One Hundred and First Amendment] Act, 2016 w.e.f. 16.09.2016. Clause [3], before omission, stood as under :-

Article 286 : Restrictions as to imposition of tax on the sale or purchase of goods -

[3] Any law of a State shall, in so far as it imposes, or authorizes the imposition of, -

[a] a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce; or [b] a tax on the sale or purchase of goods, being a tax of the nature referred to in sub-clause [b], sub-clause [c] or sub-clause [d] or Clause [29A] of Article 366, be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify.

35. Clause [c] of Section 2 of the Central Sales Tax Act, 1956, prior to its omission by the Taxation Laws [Amendment] Act, 2017, provided for the definition of 'declared goods' and 'declared goods' used to mean goods declared under Section 14 to be of special importance in inter-State trade or commerce.

36. Section 14 of the Central Sales Tax Act, 1956, prior to its omission by the Taxation Laws [Amendment] Act, 2017, used to deal on the subject-matter, 'Certain goods to be of special importance in inter-State trade or commerce'. Section 15 of the Central Sales Tax Act, 1956, prior to its omission by the Taxation Laws [Amendment] Act, 2017, used to deal on the subject-matter, 'Restrictions and conditions in regard to tax on sale or purchase of declared goods within a State'. Section 14 and Section 15 had been omitted by the Taxation Laws [Amendment] Act, 2017 w.e.f. 01.07.2017 with the introduction of the Goods and Services Tax Act, 2017. Prior to their omissions, the parts of Section 14 and Section 15 which are of relevance for the cases in hand, used to be read as under :-

14. Certain goods to be of special importance in inter-State trade or commerce. -

It is hereby declared that the following goods are of special importance in inter-State trade or commerce :-

             [i]   *           *              *               *               *
                   *           *              *               *                *

[ia] coal, including coke in all its forms, but excluding charcoal :

Provided that during the period commencing on the 23 rd day of February, 1967 and ending with the date of commencement of Section 11 of the Central Sales Tax [Amendment] Act, 1972 [61 of 1972] this clause shall have effect subject to the modification that the works 'but excluding charcoal' shall be omitted;

              [ii]         *            *              *              *
                          *            *              *              *

15. Restrictions and conditions in regard to tax on sale or purchase of declared goods within a State. -

Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely :-

[a] the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed five per cent of the sale or purchase price thereof;

[b] where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, and tax has been paid under this Act in respect of the sale of such goods in the course of inter-State trade or commerce, the tax levied under such law shall be reimbursed to the person making such sale in the course of inter-State trade or commerce in such manner and subject to such conditions as may be provided in any law in force in that State;

             [c]          *            *              *              *
                          *            *              *              *

37. The provisions contained in Section 50 and Section 52 of the Assam Value Added Tax Act, 2003 deal with matters of 'refund' and 'interest' respectively.

For ready reference, Section 50 and Section 52 are quoted herein below in their entirety :-

Section 50 - Refund

[1] Subject to other provisions of this Act and the rules made thereunder, if it is found on the assessment or reassessment, as the case may be, that a dealer has paid tax, interest or penalty in excess of what is due from him, the Prescribed Authority shall, on the claim being made by the dealer in the prescribed manner and within the prescribed time, refund to such dealer the amount of tax, penalty and interest paid in excess by him :

Provided that, such refund shall be made after adjusting the amount of tax or penalty, interest or sum forfeited or all of them due from, and payable by the dealer on the date of passing of order for such refund.

[2] Where the amount of input tax credit admissible to a registered dealer for a given period exceeds the tax payable by him for the period, he may, subject to such restrictions and conditions as may be prescribed, seek refund of the excess amount, by making an application in the prescribed form and manner, containing the prescribed particulars and accompanied with the prescribed documents to the Prescribed Authority, or adjust the same provisionally with his future liability to tax in the manner prescribed :

Provided that, the amount of tax or penalty, interest or sum forfeited or all of them due from, and payable by, the dealer on the date of such adjustment shall first be deducted from such refund before adjustment.

Section 52 - Interest

[1] A registered dealer entitled to refund in pursuance of any order under this Act including assessment or in pursuance of any order by any Court, shall be entitled to receive, in addition to the refund, simple interest at the rate of nine percent per annum for the period commencing after ninety days of the application claiming refund in pursuance to such order till the date on which the refund is granted. [2] The interest shall be calculated on the amount of refund due after deducting therefrom any tax, interest, penalty or any other dues under this Act.

[3] If, as a result of any order passed under this Act, the amount of such refund is enhanced or reduced such interest shall be enhanced or reduced accordingly.

[4] When a dealer is in default or is deemed to be in default in making the payment in pursuance of any assessment under this Act, he shall be liable to pay simple interest on such amount at the rate of one and half percent per month from the date of such default for so long as he continues to make default in the payment of the said tax. [5] Where as a result of any final order the amount of tax [including any penalty] due or in default is wholly reduced, the amount of interest, if any, paid shall be refunded, or if such amount is modified, the interest due shall be calculated accordingly and any excess amount of interest paid shall be refunded.

[6] Where any amount of tax payable is enhanced by any such order, interest shall be payable on the amount by which the tax is enhanced.

[7] Where the realization of any amount remains stayed by the order of any Court or authority and such order is subsequently

vacated, interest shall be payable also for any period during which such order remained in operation.

[8] The interest payable under this Act shall be deemed to be tax due under this Act.

38. Reference to the other relevant statutory provisions would be made at the appropriate places of this order.

VIII. The previous litigation :-

39. There is a long history of litigation on the question whether Calcined Petroleum Coke [CPC] made out of Raw Petroleum Coke [RPC] would come within the phrase, 'Coal, including Coke in all its forms'. The issue is also inter-wined, for the purpose of this case in hand, with the Section 14 and Section 15 of the CST Act and the AVAT Act. It would, therefore, be apt to trace the litigation history on the issue and the decisions rendered thereon, at first, before any deliberation on the impugned Order.

[i] Coke in all its forms; Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC] :-

40. Petroleum Coke is a by-product of the oil industry. Raw Petroleum Coke, abbreviated as Coke, Pet-Coke or Petcoke, is a carbonaceous solid derived from oil refinery cooker units or other cracking processes. Calcined Petroleum Coke [CPC] as a product emerges after Raw Petroleum Coke [RPC] is subjected to the industrial process of calcination. Calcined Petroleum Coke [CPC] is created by processing Raw Petroleum Coke [RPC] into rotary kilns. Since the product of Calcined Petroleum Coke [CPC] undergoes an irreversible chemical change in the industrial process, it is chemically and physically a different item from Raw Petroleum Coke [RPC]. Calcined Petroleum Coke [CPC] is used as a feedstock

for wide range of products such as aluminum, paints, coatings, etc. which are used by a number of industries.

41. An issue arose whether Petroleum Coke would come within the phrase, 'Coal, including Coke in all its forms' appearing in item [ia] of Section 14 of the CST Act. By an amendment made in the year 1964 in the Assam Sales Tax Act, 1947 w.e.f. 01.09.1964, Coke was taken out of the list of goods on which no sales tax was levied. When the Superintendent of Taxes, Assam informed the company, M/s India Carbon Limited that Petroleum Coke was taxable @ 5 paise per rupee under the Assam Sales Tax Act, 1947, after the amendment, the company, M/s India Carbon Limited moved this Court under Article 226 of the Constitution of India on the ground that such rate under the Assam Sales Tax Act, 1947, the Assam Finance Sales Tax Act, 1956 and the Assam [Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants] Taxation Act, 1955 was not payable in view of Section 15[a] of the CST Act, as it stood at that point of time, and the rate at which the tax would be payable was @ 2 paise per rupee under the CST Act. By an Amending Act, 1966, 3 per cent was substituted for 2 per cent w.e.f. 01.07.1966.

[ii] Civil Appeal no. 1612 of 1988 : India Carbon Ltd. vs. Superintendent of Taxes, Gauhati and others : [1971] 3 SCC 612 :-

42. Though the writ petition was dismissed, the matter was carried to the Hon'ble Supreme Court in a civil appeal, Civil Appeal no. 1612 of 1968. In the judgment rendered in the case titled India Carbon Limited vs. Superintendent of Taxes, Gauhati and others, reported in [1971] 3 SCC 612, on 18.08.1971, the Hon'ble Supreme Court had observed that if it was not disputed that Petroleum Coke was covered within the phrase, 'Coal, including Coke in all its forms' under Section 14 of the CST Act, the State was not competent to levy tax at a rate exceeding the one given in Section 15[a] of the CST Act.

42.1. The Hon'ble Supreme Court had observed as under :-

6. ......The language is clearly wide and Coal has been stated to include Coke in all its forms. It is not denied that Petroleum Coke is one of the forms of Coke. Therefore on a plain reading of the aforesaid clause it is incomprehensible how Petroleum Coke can be excluded from its ambit. It may be that the clause mentions Coal only and then declares that that word shall include Coke in all its forms.

That shows that the object of the words which follow Coal is to extend its meaning....

* * * * *

.... We do not consider that when the Parliament used the word 'Coke' in Section 14[i] of the Central Act it had any intention to give it a meaning other than the ordinary dictionary meaning which would cover Petroleum Coke. At any rate, the language employed is so wide viz., 'Coke in all its forms' that Petroleum Coke which is a form of Coke cannot possibly be excluded merely by reference to the word 'Coal'.

43. It has been authoritatively held in India Carbon Limited [supra] that Coal includes Coke in all its forms and Petroleum Coke is one of the forms of Coke. Thus, Petroleum Coke was included within the declared goods of special importance in inter-State trade or commerce, as per Section 14 of the CST Act.

[iii] The Assam [Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants] Taxation Act, 1955 :-

44. The Assam [Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants] Taxation Act, 1955 ['the Act, 1955' and/or 'the 1955 Act', for short] was an Act passed by the State of Assam for imposition of tax on sales of Petroleum and Petroleum Products including Motor Spirit and Lubricants for the purpose of making an addition to the public revenue. Section 3 of the said Act was the charging provision.

45. By an amendment of 1986, sub-section [1] of Section 3 of the 1955 Act which provided for the rate of tax, was amended. Prior to amendment, sub-section [1] of Section 3 had provided for levy and collection from every dealer a tax on his turnover or sales of Petroleum Coke @ 3 paise in the rupee. With the amendment by the Assam [Sales of Petroleum and Petroleum Products including Motor Spirit and Lubricants] Taxation [Amendment] Act, 1986, the following were inter alia inserted :-

[vi] Petroleum Coke ......... Four paise in the rupee. Explanation. - Petroleum coke means Raw Petroleum Coke only and does not include Calcined Petroleum Coke.

[vii] Calcined Petroleum Coke ... Four paise in the rupee

By the said amendment, Petroleum Coke was classified into two commercial commodities - [i] Raw Petroleum Coke [RPC] and [ii] Calcined Petroleum Coke [CPC].

[iv] Civil Rule no. 163 of 1987: M/s India Carbon and others vs. State of Assam and others, [1992] 1 GLR 82 [DB] :-

46. The Division Bench Judgment in M/s India Carbon and others vs. State of Assam and others, reported in [1992] 1 GLR 82 [DB], was in respect of a challenge to the vires of Section 3 of the 1955 Act. The petitioners therein in Civil Rule no. 163 of 1987 had challenged the vires of Section 3 of the Act,

1955 in so far as it related to the classification of Petroleum Coke into two commercial commodities, that is, [i] Raw Petroleum Coke [RPC] and [ii] Calcined Petroleum Coke [CPC], for the purpose of taxation on the ground that it violated Article 286[3] of the Constitution of India and the CST Act.

46.1. The petitioners therein were in the business of purchase and sale of Petroleum Coke and used to purchase Raw Petroleum Coke [RPC] and pay tax under the provisions of the 1955 Act. Out of the Raw Petroleum Coke [RPC], the petitioner companies used to manufacture Calcined Petroleum Coke [CPC] and used to sell most of the Calcined Petroleum Coke [CPC] so manufactured, in the course of inter-State trade or commerce. The petitioner companies had asserted that they paid tax under the CST Act and in view of Section 15[b] of the CST Act, the State of Assam was required to refund the tax levied under the State Act. The Superintendent of Taxes, Assam refused the claims for refund made by the petitioner companies on the ground that Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC] were different commercial commodities.

46.2. The Division Bench considered the provisions of Article 286[3], Section 14 and Section 15 of the CST Act and the decision of the Hon'ble Supreme Court of India in India Carbon Limited [supra]. The Division Bench had held that Raw Petroleum Coke [RPC] and/or Calcined Petroleum Coke [CPC] would come within the ambit of 'Coke in all its forms' and therefore, Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC] were to be treated as one and the same for the purpose of item [ia] of Section 14 of the CST Act although the commodities were different physically. After analyzing the restrictions dealt by Section 15 of the CST Act, as it stood then, on sales tax law of the State, the Division Bench had held that though the Assam Act had treated Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC], which were goods declared, as different commodities for the purposes of sales tax law of the State, such treatment as two different commodities could not prevail over Section 14 of the

CST Act. The Division Bench had gone on to hold that if Raw Petroleum Coke [RPC] was purchased inside the State and Calcined Petroleum Coke [CPC] was also sold inside the State, after calcination, and if the State law would impose tax on Raw Petroleum Coke as well as on Calcined Petroleum Coke [CPC], it would amount to imposition of tax on a sale or purchase inside the State of goods declared at more than one stage, which was not permissible under Section 15 of the CST Act. It was, thus, held that the State Act could not impose tax on Raw Petroleum Coke [RPC] as well as on Calcined Petroleum Coke [CPC] if a sale or purchase of both Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC] took place within the State of Assam as such imposition of tax would be unconstitutional in view of Article 286[3] of the Constitution read with the CST Act. Finding that the doctrine of 'reading down' would be attracted in the case in order to save unconstitutionality due to arising out of the situation stated, Entry [vii] of Clause [1] of Section 3 of the 1955 Act, was read down as 'Calcined Petroleum Coke [which was not subjected to tax as Raw Petroleum Coke]'.

46.3. The Division Bench had further observed that as Clause [b] of Section 15 of the CST Act had provided that if the same declared goods were subsequently the subject-matter of inter-State sale and tax was paid on such transaction under the CST Act the dealer would be entitled to refund of tax paid under the State law, the petitioners therein would be entitled to get refund in those cases where the tax was paid on a sale or purchase of Raw Petroleum Coke [RPC] under the State Act and tax had been paid on sale or purchase of Calcined Petroleum Coke [CPC] under the CST Act. By the Judgment and Order dated 16.12.1991, the orders passed by the State authorities refusing to refund tax paid in respect of Raw Petroleum Coke [RPC] were quashed.

46.4. Aggrieved by the Judgment and Order dated 16.12.1991 rendered by the Division Bench of this Court in Civil Rule no. 163 of 1987, M/s India Carbon vs. the State of Assam, reported in [1992] 1 GLR 82[DB], the State of Assam

carried the matter to the Hon'ble Supreme Court of India by way of an appeal, which was registered and numbered as Civil Appeal no. 3802 of 1992.

[v] Civil Appeal no. 6073-74 of 1994 : State of Bihar and others vs. Universal Hydrocarbons Co. Ltd. and another, 1994 Supp [3] SCC 621 :-

47. In State of Bihar and others vs. Universal Hydrocarbons Co. Ltd. and another, reported in 1994 Supp [3] SCC 621, the case of the respondent company was that it purchased Raw Petroleum Coke [RPC] and after subjecting the same to a manufacturing process produced Calcined Petroleum Coke [CPC]. In view of payment of sales tax required under the CST Act, the respondent company claimed refund of the sales tax paid by it under the State law on purchase of raw material. By a Common Order dated 10.04.1992 passed in two writ petitions, the claim was allowed by the Patna High Court. In Civil Appeal nos. 6073-74 of 1994, the State of Bihar, as contended before the High Court, contended also before the Hon'ble Supreme Court that though the Entry under Section 14[ia] of the CST Act provided for 'Coal, including Coke in all its forms, but excluding Charcoal', if the Raw Petroleum Coke [RPC] had undergone a process of manufacture which ultimately resulted in Calcined Petroleum Coke [CPC], it was a different product for the purpose of taxation. It was contended that in the field of taxation, the State would have a wide choice in choosing the object of taxation.

47.1. The Hon'ble Supreme Court had held that when the Entry in Section 14[ia] of the CST Act had said 'Coke in all its forms', there was no possibility of bringing Coke of different forms except under Entry [ia] in Section 14, by observing as under :-

18. We are totally unable to accept this line of reasoning. Once the entry is 'Coke in all its forms' irrespective of the fact Raw Petroleum Coke loses its original identity or in the process of manufacture

Calcined Petroleum Coke is produced, cannot take Calcined Petroleum Coke out of the purview of this entry. In more or less identical situation, this Court held in India Carbon case, [1971] 3 SCC 612, that Petroleum Coke is one form of Coal governed by the expression 'Coal' within Section 14[i-a]. The relevant extract of the judgment is as under :

It is not disputed that if Petroleum Coke is covered by clause [i] of Section 14 which reads 'Coal including Coke in all its forms' the State was not competent to levy tax at a rate exceeding the one given in Section 15[a] of the Central Act.

* * * * *

The High Court was of the view that the word 'Coal' includes Coke in all its forms in clause [i] of Section 14 of the Central Act and must be taken to mean Coke derived from Coal. In other words it must be Coke which had been derived or acquired from Coal by following the usual process of heating or burning. The contention, therefore, of the appellant was negatived that Petroleum Coke was covered by the aforesaid provision of the Central Act.

19. This decision fully supports the respondent. The fact that Calcined Petroleum Coke is a different commodity is of little consequence.

[vi] Final Outcome of Civil Appeal no. 3802 of 1992 :-

48. In view of the Judgment rendered in Civil Appeal nos. 6073-74 of 1994 : State of Bihar and others vs. Universal Hydrocarbons Co. Ltd. and another, reported in 1994 Supp [3] SCC 621, the appeal preferred by the State of Assam against the Judgment and Order dated 16.12.1991 of the Division Bench of this Court in Civil Rule no. 1630 of 1887 [M/s India Carbon vs. the State of Assam], reported in [1992] 1 GLR 82, Civil Appeal no. 3802 of 1992 came to be dismissed vide an Order dated 22.09.1995.

[vii] W.P.[C] no. 4586 of 2008 [M/s Guwahati Carbon Limited vs. the State of Assam] & W.P.[C] no. 6646 of 2010 [M/s Brahmaputra Carbon Limited vs. the State of Assam] :-

49. When despite the aforesaid pronouncements the refunds were not granted to the industrial units engaged in the process of conversion of Raw Petroleum Coke [RPC] to Calcined Petroleum Coke [CPC] in terms of Section 15[b] of the CST Act, one writ petition, W.P.[C] no. 4586 of 2008 [M/s Guwahati Carbon Limited vs. the State of Assam] was preferred by M/s Guwahati Carbon Limited. The writ petition was preferred as the said petitioner's application for refund of taxes was rejected by the State authorities. Another writ petition, W.P.[C] no. 6646 of 2010 [M/s Brahmaputra Carbon Limited vs. the State of Assam] was preferred on similar grounds. Both the writ petitions - W.P.[C] no. 4586 of 2008 & W.P.[C] no. 6646 of 2010 - were allowed by the Division Bench of this Court by a common Judgment and Order dated 12.12.2012 by following the decision in Universal Hydrocarbons Co. Ltd [supra]. The Division Bench had also set aside the impugned orders whereby the applications for refund were rejected and directed the State respondents to take a fresh decision in the matter within a period of 3 [three] months.

[viii] Civil Appeal no[s]. 5518-5519 of 2013 : The State of Assam & others vs. M/s Guwahati Carbon Ltd. & another etc. :-

50. Against the common Judgment and Order dated 12.12.2012 passed in W.P.[C] no. 4586 of 2008 & W.P.[C] no. 6646 of 2010, the State of Assam preferred two Special Leave Petitions [SLPs] before the Hon'ble Supreme Court. The SLPs were initially registered and numbered as SLP [Civil] no[s]. 12907- 12908/2013 and the same were subsequently registered as Civil Appeal no[s]. 5518-5519 of 2013 [the State of Assam & others vs. M/s Guwahati Carbon Ltd. & another etc.] after grant of leave.

50.1. While granting leave on 04.10.2013, the Hon'ble Supreme Court stayed the operation of the Judgment and Order dated 12.12.2012, subject to the following conditions :-

[i] 50% of the refund amount pursuant to the impugned order shall be kept separately in a separate account by the appellants. [ii] Remaining 50% of the refund amount shall be deposited by the appellants with the Registry of this Court within two months from today. The amount to deposited may be withdrawn by the respondents on furnishing suitable bank guarantee with the satisfaction of the Registrar [J-I] and also an undertaking that in event of Appeals being allowed the amount so withdrawn shall be restituted to the appellants along with 10% simple interest from the date of withdrawal. [iii] In the event of Appeals being dismissed, the appellants shall pay to the respondents 50% of the amount which has been kept in separate account along with 10% simple interest from today.

50.2. The State of Assam deposited 50% of the refund amount due to the respondents in the SLPs in terms of the Order dated 04.10.2013 before the Registry of the Hon'ble Supreme Court.

51. During the pendency of Civil Appeal no[s]. 5518-5519 of 2013 before the Hon'ble Supreme Court, one of the dealers claiming to be similarly situated like

the respondents in those two civil appeals, preferred a writ petition, W.P.[C] no. 761/2014 [India Carbon Limited and another vs. the State of Assam and others] before this Court claiming refund of the taxes paid on purchase of the Raw Petroleum Coke [RPC] which after conversion into Calcined Petroleum Coke [CPC], was sold in the course of inter-State trade or commerce by paying taxes under the CST Act. The said writ petition was disposed of by this Court by an Order dated 11.03.2015 in the following terms :-

Heard the petitioner and the respondent.

The Supreme Court in a similar matter [Special Leave to Appeal (Civil) 12907-12908/2013] involving similar facts and circumstances passed the following interim order.

[i] 50% of the refund amount pursuant to the impugned order shall be kept separately in a separate account by the appellants. [ii] Remaining 50% of the refund amount shall be deposited by the appellants with the Registry of this Court within two months from today. The amount so deposited may be withdrawn by the respondents on furnishing suitable bank guarantee with the satisfaction of the Registrar [J-I] and also an undertaking that in the event of Appeals being allowed the amount so withdrawn shall be restituted to the appellants along with 10% simple interest from the date of withdrawal.

[iii] In the event of Appeals being dismissed, the appellants shall pay to the respondents 50% of the amount which has been kept in separate account along with 10% simple interest from today. In this case also the similar interim order is passed and the petition is disposed of subject to the result of the Civil Appeal 12907- 12908/2013.

[ix] Final Outcome of Civil Appeal no[s]. 5518-5519 of 2013 : The State of Assam & others vs. M/s Guwahati Carbon Ltd. & another etc. :-

52. The Hon'ble Supreme Court of India found the issue involved in the civil appeals squarely covered by the Judgment in Universal Hydrocarbons Co.

Ltd [supra] and had further observed that the decision in Universal Hydrocarbons Co. Ltd [supra] was rightly relied upon by the Division Bench of this Court in the Judgment under appeal. Finding no reason to interfere with the Judgment under appeal, the appeals were dismissed by an Order dated 12.01.2017. While dismissing the appeals it had observed also as follows :-

However, we are informed that pursuant to an interim order dated 04.10.2013, an amount of Rs. 2,52,20,840/- [Rupees Two Crores Fifty Two Lakhs Twenty Thousand Eight Hundred and Forty only] is lying in a fixed deposit amount. In view of the dismissal of the appeals, the first respondent would be at liberty to withdraw the same along with the accrued interest on making an appropriate application to the Registry in this regard.

If any further amounts are due under the order of the High Court to the first respondent, the first respondent would be at liberty to take appropriate steps for the recovery of the same.

53. It is a settled proposition of law that a judicial decision acts retrospectively. It has been held in Saurashtra Kutch Stock Exchange Limited [supra] that it is not the function of the court to pronounce a 'new rule' but to maintain and expound the 'old one'. The courts do not make the law. The courts only discover or find the correct law. If a subsequent decision alters the earlier one, it [the later decision] does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. In other words, even where an earlier decision of the court operated for quite some time, the

decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. The decision in Saurashtra Kutch Stock Exchange Limited [supra] has been referred in Directorate of Revenue Intelligence vs. Raj Kumar and others, 2025 INSC 498 to reiterate the principle.

54. It is also settled by the decision in M.S.L. Patil [supra] that if the courts have laid down a general principle of law, then the general principle of law stands applicable to every person irrespective of the fact whether he is a party to the earlier proceedings or not. The general principle of law is also extended to a situation that if a person is not a party in a lis then also the general principle of law laid down by the superior courts is applicable to him whether or not he is a party to any earlier proceeding.

55. From the above precedents, it is evidently clear that the general principles of law which are laid down are that Petroleum Coke is one of the forms of Coke and it is covered within the phrase, 'Coal, including Coke in all its forms' under Section 14 of the CST Act and it was declared as a good of special importance in inter-State trade or commerce. A good declared as a good of special importance is also referred to as 'declared good'. Though Petroleum Coke can be classified into two commercial commodities, that is, [i] Raw Petroleum Coke [RPC], and [ii] Calcined Petroleum Coke [CPC], both of them are treated to be within the ambit of the phrase, 'Coke in all its forms' and they were treated as one and the same for the purpose of Section 14 of the CST Act although the two were different physically. The general principle of law is also laid down to the effect that if a dealer purchased Raw Petroleum Coke [RPC] within the State by paying Value Added Tax [VAT] levied under the AVAT Act and the dealer after converting the purchased Raw Petroleum Coke [RPC] into Calcined Petroleum Coke [CPC], sold the Calcined Petroleum Coke [CPC] outside the State in the course of inter-State trade or commerce and the dealer had paid the Central Sales Tax under the CST Act on such sold Calcined Petroleum Coke [CPC], then the dealer would be entitled for reimbursement of the Value Added

Tax [VAT] amount paid on the purchase of Raw Petroleum Coke [RPC] as per Section 15[b] of the CST Act. On the issues involved in the above precedents, this Court has not found any later judgment overruling any previous judgment. Meaning thereby, the above general principles of law laid down has been consistent all throughout. Therefore, the petitioner as a dealer has a valid claim for reimbursement of the Value Added Tax [VAT] paid on purchase of Raw Petroleum Coke [RPC] in the State.

56. Reverting back to the facts of the case in hand, it has emerged from the materials on record that originally, Assessment Orders for the Assessment Years : 2006-2007, 2007-2008 and 2008-2009 were completed on 10.03.2012. It has been stated that the assessment proceedings for the Assessment Years :

2009-2010, 2010-2011, 2011-2012, 2012-2013 and 2013-2014 were completed on 03.03.2015/03.09.2015. For the Assessment Years : 2006-2007, 2007-2008 ad 2008-2009, the petitioner submitted its application on 26.04.2010 seeking reimbursement of the Value Added Tax [VAT] paid on purchase of Raw Petroleum Coke [RPC] inside the State. For the Assessment Year : 2009-2010, the application was submitted on 10.04.2010. The dates of submission of similar applications for the Assessment Years : 2010-2011 and 2011-2012 were 08.05.2011 and 01.08.2012 respectively. The date of submission of similar applications for the Assessment Years : 2012-2013, 2013-2014 and 2014-2015 was 23.12.2015. As the applications for reimbursement for the Assessment Years : 2009-2010, 2010-2011 and 2011-2012 were not available in the office of the State respondents, those were resubmitted on 23.12.2015.

57. In the Orders, mentioned in Table-II hereinabove, it is reflected that the Orders were passed under Section 42 of the AVAT Act. In the Orders, it was acknowledged that the petitioner had submitted applications for the different Assessment Years claiming reimbursement under Section 50 of the AVAT Act read with Rule 29 of the AVAT Rules on the dates mentioned above. It has been further recorded that verification of case records revealed that the

petitioner is engaged in the manufacture of Calcined Petroleum Coke [CPC] from Raw Petroleum Coke [RPC] and it makes local purchase of Raw Petroleum Coke [RPC] from refineries of Assam and sells its finished product, that is, Calcined Petroleum Coke [CPC] in the course of inter-State trade or commerce. Both Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC] are acknowledged to be declared goods. It has been further recorded that Section 15[b] of the CST Act provides for reimbursement of the local tax paid on intra- State purchase of declared goods subject to the condition that Central Sales Tax has been paid on the inter-State sale of such declared goods. It is pertinent to state that 'declared goods' has been defined in Section 2[16] of the AVAT Act to mean goods declared from time to time under Section 14 of the CST Act to be of special importance in the course of inter-State trade or commerce.

57.1. The Orders recorded that assessment though Audit Assessments for the Assessment Years under reference were completed by the Assessing Authority earlier, as mentioned, the Assessment Orders were silent on the reimbursement claim under Section 15[b] of the CST Act.

57.2. The Orders also recorded about the rejection of reimbursement proposals in case of M/s Guwahati Carbon Limited and M/s Brahmaputra Carbon Limited and the approaches made by them before the High Court against such rejection by way of writ petition. The Orders further recorded about allowing the writ petition by the High Court following the decisions of the Hon'ble Supreme Court in State of Bihar vs. Universal Hydro Carbon Company Limited, 1994 Supp [3] SCC 621 and filing of the special leave petitions, subsequently registered as Civil Appeal no[s]. 5518-5519 of 2013 by the State of Assam and passing of the interim order on 12.07.2013. The Orders further recorded the dismissal of the afore-stated civil appeals resulting in a position that the amount of tax paid on purchase of Raw Petroleum Coke [RPC] would be reimbursable to the dealer.

57.3. The Orders also took note of the fact that in case of issuance of Eligibility Certificate [EC] and Certificate of Entitlement [CE] granting tax incentives for a specific period, then the dealer during the period of such remission, is supposed to charge and collect the tax amount but it can avail the benefit of remission to 99% of the tax so collected and is required to deposit only 1%.

57.4. The Orders examined statement of tax deposited under the AVAT Act on purchase of Raw Petroleum Coke [RPC] and the sales of Calcined Petroleum Coke [CPC]; and calculated the amount reimbursable. In the Orders, the Assessing Authority had recorded the ground of refund as under :-

Ground of Refund

Tax paid of purchase has been claimed as refund by the dealer as per Section 15[b] of the Central Sales Tax Act, 1956 where any tax is levied under the law on the sale or purchase of any goods referred to in Section 14 of the Central Sales Tax Act, 1956 and such goods are subsequently sold in the course of inter-State trade of commerce the amount of tax paid under the local law is refundable to the dealer paying such tax. The dealer purchased Raw Petroleum Coke [RPC] from refineries by paying VAT during the relevant year and sold the same after converting the same into Calcined Petroleum Coke [CPC] which is the same declared commodity namely 'Coke in all its forms'. The Hon'ble Supreme Court in the case of the State of Bihar and others vs. Universal Hydrocarbon Co. Ltd. and another, 1994 Supp [3] SCC has upholding the judgment of the High Court, Patna and held under exact facts the local tax to be reimburse/refundable'.

The Hon'ble Supreme Court vide an order dated 12.01.2017 dismissed the appeals filed by the State of Assam and other against the Gauhati High Court order dated 13.12.2012, hence the decision of the Supreme Court fully supports the respondent/dealer.

58. There is no dispute to the facts and law stated in the above 'Ground of Refund'. It was pursuant to the above re-assessment Orders made under Section 42 of the AVAT Act, the Joint Commissioner of State Tax, Assam from the Office of the Commissioner State Tax, Assam wrote the Office Letter no. CTS-1/2019/33 dated 20.09.2019 to the petitioner on the subject 'Furnishing Undertaking for no further claim for interest other than 10% simple interest p.a. from 12.07.2013 as per interim order of the Hon'ble Supreme Court' and in reference to a Government Letter no. FTX.145/2009/Pt/121 dated 14.03.2018.

58.1 The contents of the afore-sated Office Letter dated 20.09.2019 reads as under

:-

This has the reference to your claim for reimbursement of VAT paid on RPC for the assessment 2006-07 to 2011-12 under Section 15[b] of the CST Act pursuant to Hon'ble Supreme Court's order and also with regard to your claim for payment of simple interest @10% p.a. on such reimbursement VAT amount from 12.07.2013 pursuant to interim order of the Hon'ble Supreme Court.

In this context, you are hereby asked to furnish an 'Undertaking' by way of an Affidavit to the effect that you will have no further claim towards interest other than 10% simple interest p.a. claimed by you from 12.07.2013 till the final assessment orders, in order to process your claim of reimbursement and interest on such amount.

59. In response to the Office Letter dated 20.09.2019 and in compliance thereof, the petitioner submitted the undertaking by way of an affidavit stating that the petitioner would have no further claim for interest other than simple interest @ 10% per annum from 12.07.2013 as per the interim order of the Hon'ble Supreme Court.

60. It was subsequent to submission of such an undertaking, the Commissioner of Taxes, Assam wrote to the Government in the Finance [Taxation] Department on the matter of refund proposals of the petitioner. The refund proposals for different Assessment Years were forwarded by different Office Letters in October/December, 2019 on the subject 'Approval to the sanctioning of refund of an amount of Rs. 50,81,450/- [Rupees fifty lakh eighty-one thousand four hundred fifty] only to M/s Digboi Carbon Pvt. Ltd., Industrial Estate, Borguri, Tinsukia for the assessment year 2006-07 under the Assam Value Added Tax Act, 2003'.

60.1. The details of the different Office Letters for different Assessment Years and the amount for which reimbursement proposals were submitted are mentioned in Table-III above.

61. From the above Office Letters whereby approval for sanctioning refund of the amounts mentioned therein, the Commissioner of Taxes had inter-alia had made the following observations :-

[i] The refund proposals were processed by the Commissionerate with views taken from the Legal Remembrancer, Assam forwarded vide an Office Letter no. FTX.145/2009/Pt/280 dated 02.07.2019 and as per the direction of the Government forwarded vide an Officer Letter no. FTX.145/2019/Pt/288 dated 14.08.2019 [not placed before the Court by the State respondents]. It was mentioned that by the Government Letter dated 14.08.2019, the Commissionerate was directed to process the refund proposals of the petitioner

similarly as M/s Brahmaputra Carbon Limited and M/s Guwahati Carbon Limited.

[ii] Though the refund proposals were submitted by the petitioner-dealer from time to time, all the refund proposals were kept pending before the jurisdictional Assistant Commissioner of Taxes due to pendency of Civil Appeal no[s]. 5518-5519 of 2013 before the Hon'ble Supreme Court, which arose out of the refund proposals of M/s Brahmaputra Carbon Limited and M/s Guwahati Carbon Limited. In view of the Order dated 12.01.2017 passed in Civil Appeal no[s]. 5518-5519 of 2013, the common/identical question of law has been settled and the refund/reimbursable amounts to those dealers had already been sanctioned.

[iii] Though the petitioner-dealer is not involved in any litigation, in view of the Order of the Hon'ble Supreme Court and as per the views of the Legal Remembrancer, Assam there is no dispute with regard to the tax amount refundable/reimbursable to the petitioner-dealer under Section 15[b] of the CST Act.

[iv] On the question of applicability of interest on the reimbursable tax, the Commissionerate had sought clarification and views from the Legal Remembrancer, Assam who had opined that the petitioner-dealer shall be entitled to interest @ 9% per annum for the period commencing after ninety days of the application claiming refund till the date when the refund is granted. Taking note of the refund proposals of M/s Brahmaputra Carbon Limited and M/s Guwahati Carbon Limited, the Legal Remembrancer had suggested that if the department would allow interest @ 10% w.e.f. 12.07.2013 in view of the Hon'ble Supreme Court's interim order by taking an undertaking from the petitioner-dealer the amount would be lesser than the actual amount if calculated with 9% interest from expiry of three months of raising the claim by the petitioner-dealer. As directed by the Legal Remembrancer, the

Commissionarate had accordingly received and undertaking form the dealer and the rest period would entail simple interest @9% as per Section 52 of the AVAT Act. The Government in its Officer Letter dated 14.08.2019 had also conveyed for adopting the same principle for calculation of the interest.

[v] The Commissioner of Taxes had given an outline of the case of the petitioner and the history of litigation on the issue pertaining to Raw Petroleum Coke [RPC] and Calcined Petroleum Coke [CPC] being declared goods and reimbursement of local tax paid on Raw Petroleum Coke [RPC] if after manufacture, Calcined Petroleum Coke [CPC] was sold in the course of inter- State trade and commerce by paying Central Sales Tax.

[vi] In view of the Hon'ble Supreme Court's order in Civil Appeal no[s]. 5518- 5519 of 2013, the jurisdictional Assistant Commissioner of Tax had completed the assessments allowing the claims of the petitioner-dealer for reimbursement of local tax paid on purchase of Raw Petroleum Coke [RPC] in terms of the provision of Section 15[b] of the CST Act. The Assessing Authority had allowed interest @10% from 12.07.2013 to 12.06.2018. When the refund proposals/assessment orders were forwarded by the jurisdictional Assistant Commissioner of Tax to the jurisdictional Deputy Commissioner of Taxes, the jurisdictional Deputy Commissioner of Taxes being satisfied with the refund proposal/assessment orders forwarded the same to the Commissionerate.

[vii] Section 50 of the AVAT Act read with Rule 29 of the AVAT Rules provided for refund of any amount paid in excess. As the amounts in the refund proposals exceeded Rs. 50 lakh, prior approval of the Government would be necessary as per provisions of Rule 29[1][e] of the AVAT Rules.

61.1. With the above observations, the refund proposals were forwarded by the Commissioner of Taxes, Assam to the Government for according its approval for sanctioning refund of the amounts for the Assessment Years, as mentioned

in Table-III above, on account of tax paid on purchase of Raw Petroleum Coke [RPC]; and in terms of Section 15[b] of the CST Act; and in compliance of the order of the Hon'ble Supreme Court; and in view of the opinion the Legal Remembrancer, Assam. The case records in original were also forwarded to the Government for necessary action.

62. It is in the above backdrop, the sustainability and validity of the impugned Order dated 22.09.2022, which was passed after more than two years from forwarding of the refund proposals to the Government for according approval to sanction by the Commissioner of Taxes, falls for examination.

63. It is submitted at the Bar that there is no specific provision in the AVAT Act to process a claim for reimbursement of the tax levied under the Sales Tax Law of a State under Section 15[b] of the CST Act. It has been submitted, in unison, to the effect that a claim for such reimbursement is processed under Section 50 of the AVAT Act read with Rule 29 of the AVAT Rules, which provisions are already extracted hereinabove.

64. Sub-clause [c] of sub-rule [1] of Rule 29 of the AVAT Rules provided that the Prescribed Authority may reject, any claim for refund if the claim filed appears to involve any mistake apparent on the record or appears to be incorrect or incomplete, based on any information available on the record, after giving the dealer the opportunity to show cause in writing against such rejection. As per sub-clause [d] of sub-rule [1] of Rule 29, when the Prescribed Authority is satisfied that the refund claimed is due, he shall record an order sanctioning the refund. As per Clause [e] of sub-rule [1] of Rule 29 of the AVAT Rules, when the amount to be refunded is more than rupees three lakh, the Prescribed Authority shall take prior approval of Deputy Commissioner before sanctioning such refund. The Deputy Commissioner shall not approve the refund if the amount to be refunded exceeds rupees ten lakh but forward such cases to the Commissioner for approval. If the amount to be refunded is more

than rupees fifty lakh, the Commissioner shall take prior approval of the Government before sanctioning such refund.

65. 'Prescribed Authority', as per Section 2[37] of the AVAT Act, means any person appointed to assist the Commissioner under sub-section [1] of Section 3 to whom all or any of the powers of the Commissioner for the levy and collection of tax conferred by or under the AVAT Act or the AVAT Rules has been delegated by the Commissioner under sub-section [9] of Section 3. It may be stated that the taxing authorities under Section 3[1] of the AVAT Act are those authorities which the Government can appoint to assist the Commissioner for carrying out the purposes of the statute, about which it would be adverted to in the paragraph 69 below. In the case in hand, no dispute has been raised as regards competence of the Assessing Authority / Prescribed Authority involved here to deal and process with an application for claiming reimbursement under Section 15[b] of the CST Act.

66. From the afore-stated procedure laid down in Rule 29 of the AVAT Rules it is evident that if the Prescribed Authority decides to reject any claim for refund filed before it by the dealer then the dealer is to be provided with a prior opportunity to show-cause in writing against such rejection. On the other hand, when the Prescribed Authority is satisfied that the refund claim is due, he shall record an order sanctioning the refund. When the audit assessment for the Assessment Year : 2006-2007 was completed on 10.03.2012, the assessment order was silent as regards reimbursement under Section 15[b] of the CST Act. The Assessing Authority / Prescribed Authority was statutorily obligated to record an order sanctioning a refund if he was satisfied that the refund claimed was due. At the same time, he was also statutorily obligated to provide a prior opportunity of being heard to the dealer if he was satisfied that the refund claimed was not due. In the face of such statutory obligation, silence on an important issue like reimbursement of the local tax paid on the purchase of Raw Petroleum Coke [RPC] within the State in the statutory order, that is, the

audit assessment order cannot amount to rejection of the claim for reimbursement under Section 15[b] of the CST Act, as observed by the Commissioner in the impugned order.

67. Simply not dealing with a claim within a statutory order does not constitute a rejection. For rejection of a claim permissible to be made under a statute, specific reasons are to be assigned in a statutory order. Absence of a decision or maintaining silence on a claim within a statutory order cannot amount to rejection of a claim. Just because there was no mention in the audit assessments made on 10.03.2012 about reimbursement of Value Added Tax [VAT] paid on purchase on Raw Petroleum Coke [RPC] by the Prescribed Authority despite the petitioner's claim for refund on the said count, it cannot be said that such silence on the part of the Prescribed Authority would require preference of an appeal by the petitioner as a dealer as such silence cannot be treated as rejection.

68. In common parlance, a claim refers to a formal assertion of a right, or a demand for something. To re-agitate a claim means and implies bringing up the same claim, after it has been previously addressed, or dismissed. In view of silence or in absence of any specific rejection of claim, the situation of re- agitating the claim did not arise in the case of the petitioner.

69. As per Section 2[10] of the AVAT Act, 'Commissioner' means a person appointed to be Commissioner of Taxes for carrying out the purposes of the Act. Chapter-II of the AVAT Act has provided for 'Tax Authorities and Appellate Tribunal'. As per sub-section [1] of Section 3, the Government may, for carrying out the purposes of the Act, appoint a person to be Commissioner and as many other Officers as mentioned in sub-section [2] to assist him as it thinks fit. As per sub-section [2] of Section 3, there shall be following taxing authorities in various capacities to assist the Commissioner :- [a] Additional Commissioner of Taxes; [b] Joint Commissioner of Taxes; [c] Deputy

Commissioner of Taxes; [d] Assistant Commissioner of Taxes; [e] Superintendent of Taxes; [f] Inspector of Taxes; and [g] any other person appointed as such by the Government. The Commissioner, as per sub-section [3] of Section 3, shall perform his functions in respect of the whole of the State of Assam and the other Officers shall perform their functions in respect of such area or areas or of such dealers or classes of dealers or of such cases or classes of cases as the Government may, by notification in the Official Gazette, direct. The Commissioner shall have superintendence over all Officers and persons employed in the execution of the Act and all these Officers and persons employed are obligated to observe and follow the orders, instructions and the directions of the Officers superior to them.

70. Section 79 of the AVAT Act has provided for appeals to the Appellate Authority.

Sub-section [1] of Section 79 has prescribed that any person aggrieved by an order passed under the AVAT Act by a taxing authority lower in rank than a Deputy Commissioner of Taxes, may appeal to the Appellate Authority, in the manner prescribed, within sixty days from the date of receipt of such order. 'Appellate Authority' has been defined in Section 2[3] to mean a person not below the rank of the Deputy Commissioner of Taxes authorized as such by the State Government under sub-section [4] of Section 3 to hear and decide appeals under Section 79. It is stated in sub-section [4] of Section 3 that the Government may authorize an Officer not below the rank of the Deputy Commissioner of Taxes to exercise the power and perform the functions of the Appellate Authority under Section 79. Thus, it is clear that 'Appellate Authority' is not synonymous with the Commissioner. In other words, the Appellate Authority and the Commissioner to two distinct authorities.

71. Chapter-II of the AVAT Rules with the heading, 'Tax Authorities and Appellate Tribunal' have contained the relevant rules corresponding to Chapter-II of the AVAT Act. Rule 3 has provided for delegation of powers by the Commissioner. As per Rule 3, subject to the provisions of the AVAT Act and the AVAT Rules,

the Commissioner can delegate the powers to be exercised under Section 3 and specify the area in which powers are to be exercised by each of the classes of Officers by issuance of notifications in the Official Gazette. By virtue of Rule 4 : 'Jurisdiction of Taxing Authorities', the Officers to whom powers provided in Section 3 of the AVAT Act have been delegated shall exercise the powers in respect of such persons or classes of persons and in respect of such cases and areas as the Commissioner may direct. Rule 5 and Rule 6 of the AVAT Rules have provided for the restrictions and commissions of power on the delegatees and the restrictions on delegation of powers by the Commissioner. By virtue of Rule 6, the Commissioner is empowered to delegate powers exercisable by him under various provisions of the AVAT Act to an Officer not below the rank specified in the Table thereof. The power exercisable by the Commissioner to scrutinize returns to make an assessment of tax, to make audit assessment, to make re-assessment, to recover the amount of tax, interest and penalty, etc. are powers which can be delegated to an Officer not below the rank of Superintendent of Taxes. The power of re-assessment under Section 42 of the AVAT Act is also a power which can be delegated to an Officer not below the rank of Superintendent of Taxes.

72. It is found in the present case that it is the case of the respondents that the Assessment Orders by way of assessments including by way of re-assessment, for the Assessment Years on 12.06.2018, 15.06.2018, 22.06.2018, 25.06.2018 and 26.06.2018 as indicated in Table-II above under Section 42 of the AVAT Act were unauthorized. The said orders were passed by the jurisdictional Assistant Commissioner of Taxes, who is one of the taxing authorities under Section 3[2] of the AVAT Act and who assists the Commissioner to carry out the purposes of the AVAT Act.

73. It is a settled proposition that when an authority passes an order in exercise of a power delegated to him by the delegating authority, the delegating authority cannot sit in appeal on the order passed by the delegated authority. The

proposition is based on the principle that once the power has been delegated and the delegated authority has passed an order in exercise of the powers delegated to him then the order passed by the delegated authority itself is an order of the delegating authority and the delegating authority ceases to have any power to overturn the decision made by the delegatee in exercise of that delegated power. When looked from this standpoint, the orders passed by the jurisdictional Assistant Commissioner of Taxes, as mentioned in Table-II above, as a delegatee of the Commissioner of Taxes are, in essence, orders of the Commissioner of Taxes and therefore, the Commissioner of Taxes is not authorized to criticize those orders, which are to be passed by him, albeit by a delegated authority.

74. The definition of 'person' has been provided in Section 2[34] of the AVAT Act and the definition is an inclusive one. As per Clause [vi] of Section 2[34], 'person' includes the State Government. It needs to be iterated that under Section 79[1] of the AVAT Act, any person aggrieved by an order passed under the AVAT Act by a taxing authority lower in rank can appeal to the Appellate Authority. The phrase, 'any person' appearing in Section 79[1] definitely includes the State Government. If the Revenue is aggrieved by the orders purportedly passed under Section 42 of the AVAT Act by the jurisdictional Assistant Commissioner of Taxes, under reference here, as a taxing authority and delegated authority, the only remedy that was available to the Revenue and the Commissioner was in the form of invoking the appellate jurisdiction under Section 79[1] of the AVAT Act. Having not preferred any appeal by the Revenue against those orders within the prescribed period of limitation, it is not open for the Revenue including the Commissioner, to cry foul at those orders at this distant point of time. In view of such position of law, the contention advanced on behalf of the respondents that it was the petitioner as the dealer who ought to have challenged the re-assessment orders passed under Section 42 of the AVAT Act is found to be a misconceived one. Rather, it is the other way round.

75. The Commissioner under Section 82 of the AVAT Act has a revisional power which can be exercised on his own motion by calling for and examining the records in any proceedings and if he considers that any order passed by any authority subordinate to him is erroneous in so far as it is prejudicial in the interests of Revenue. He can exercise such revisional power only after giving the dealer a reasonable opportunity of being heard. Before the impugned Order, no opportunity, not to speak of reasonable opportunity, was given to the dealer, that is, the petitioner. Before exercising revisional power, the Commissioner has to reach a satisfaction that the order is erroneous and prejudicial to the interests of Revenue. The two conditions which must be satisfied before the Commissioner can exercise powers under Section 82 of the AVAT Act are that the order of the assessing authority must be found to be erroneous and it must also be found to be prejudicial to the interests of the Revenue. If the two conditions are not satisfied, the Commissioner does not get jurisdiction to pass an order revising the assessment order.

76. It has been consistently laid down that it is not necessary that every order which is found erroneous is also prejudicial to the interests of the Revenue. What is meant by the words 'prejudicial to the interests of the Revenue' has not been defined. However, giving the ordinary meaning to the words used in the statute, they must mean that the orders under consideration are such as are not in accordance with law and in consequence whereof, the lawful revenue due to the State has not been realised or cannot be realised. The well settled principle of considering the question as to whether an order is prejudicial to the interests of the Revenue or not is to address oneself to the question whether the legitimate revenue due to the exchequer has been realized or not or can be realized or not if the orders under consideration are allowed to stand. For arriving at this conclusion, it becomes necessary and relevant to consider whether the income in respect of which tax is to be realized has been subjected to tax or not or if it is subjected to tax, whether it

has been subjected to tax at the rate at which it could yield the maximum revenue in accordance with law or not. If the income in question has been taxed and legitimate revenue due in respect of that income had been realized, though as a result of an erroneous order having been made in that respect, the Commissioner cannot exercise the powers for revising the order merely on the basis that the order under consideration is erroneous [Ref : Dawjee Dadabhoy and Co. vs. Jain (S.P.), (1957) 31 ITR 872 (Cal); Additional Commissioner of Income Tax, Gujarat vs. Mukur Corporation, (1978) 111 ITR 312 (Guj); and Commissioner of Income Tax vs. Smt. Minalben S. Parikh, (1995) 215 ITR 81 (Guj)]. In the impugned Order, there is no finding recorded whether the order of the assessing authority were both erroneous and prejudicial to the interests of Revenue.

77. Considered from the standpoints of revisional power and the conditions precedent for exercise of revisional power vis-à-vis the orders in question, it can be easily noticed that no question of realization of tax was involved here. On the contrary, the question involved is refund of tax realized. Here, the purchase of Raw Petroleum Coke [RPC] was taxed and legitimate revenue was collected.

78. It is true that a statutory authority passing an order can review its own order but it is laced to the condition that the statutory authority should have the power to review. In Naresh Kumar [supra] it is held to be a settled law that the power of review can be exercised only when the statute provides for the same. In the absence of any such provision in the statute concerned, power of review cannot be exercised by the authority concerned. In the absence of any provision in the governing statute or rules, review of an earlier order is impermissible because jurisdiction to review can be derived only from the statute. Therefore, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction.

79. The law is, therefore, well settled that the power of review is a creature of the statute and it is not an inherent power. It needs to be conferred by the statute either by express/specific provision or by necessary implication. No Court or quasi-judicial authority or statutory authority can review its judgment or order or decision unless it is legally empowered to do so.

80. The predecessor Commissioner had forwarded the reimbursement proposals for different amounts to the Government for the Assessment Years : 2006- 2007 to 2013-2014 on the dates and for the amounts mentioned in Table-III above and by recording the reasons why the reimbursement proposals were to be allowed, as already outlined in paragraph 61. The refund proposals were forwarded for Government approval by the Commissioner earlier after due and proper application of mind, which is amply demonstrated by the fact that he recorded the reasons which led him to forward the refund proposals. Such forwarding of the reimbursement proposals were in conformity with the procedures laid down in Rule 29[1][e] of the AVAT Rules. The decision to forward the refund proposals to the Government by the Commissioner who was the predecessor-in-office to the Commissioner who has passed the impugned Order, was a conscious decision recording the reasons as to why he was satisfied with the reimbursement proposals. As because the reimbursement proposals would necessitate refund of amount more than rupees fifty lakhs, the predecessor-in-office forwarded those proposals for prior approval of the Government. The decisions to forward the reimbursement proposals were quasi-judicial and final so far as the Commissionerate is concerned. The statutory provisions does not empower the successor Commissioner to review those decisions within the scope and ambit of Rule 29[1][e] of the AVAT Rules read with Section 50 of the AVAT Act. In the absence of any power of review, the successor Commissioner cannot subsequently reconsider his previous decisions and hold that there were grounds for reversing the earlier decisions taken by his predecessor-in-office.

Thus, from such standpoint, the impugned Order dated 22.09.2022 re-opening of the matter is clearly illegal and without any authority and jurisdiction.

81. The respondent no. 3 is found to have maintained conspicuous silence on the Government Letter no. FTX.145/2019/Pt/288 dated 14.08.2019 whereby the Government appeared to have directed the Commissionerate of Taxes to process the refund proposals of the petitioner similarly as M/s Brahmaputra Carbon Limited. If such is the position, the respondent no. 3 has clearly sat over the Government decision overreaching his power, authority and jurisdiction.

82. In the impugned Order dated 22.09.2022, the respondent no. 3 has confined his observations with regard to the reimbursement proposals pertaining to the Assessment Years : 2006-2007 to 2013-2014. The respondent no. 3 has not made any observation as regards the reimbursement claims of the petitioner pertaining to the Assessment Years : 2014-2015 to 2017-2018.

83. The impugned order has also mentioned about 'acquiescence' and 'delay and laches'. There is a distinction between 'acquiescence' and 'delay and laches'.

84. A survey of the other decisions, placed before the Court, is found necessary at this stage.

85. The decision in Arvind Kumar Srivastava [supra] is primarily on the doctrine of parity. Ordinarily, when a party is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. Elucidating further, it has been observed that the principle is, however, subject to well-recognised exception in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and

woke up after long delay only because of the reason that their counterparts who had approached the courts earlier in time succeeded in their efforts, then such persons cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

85.1. However, an exception is carved out from the above exception by stating that the exception will not apply in those cases where the judgment pronounced by the court was a judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters. On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall approve to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.

86. In the present case, both the principle and the exception carved out from the exception are clearly applicable in view of the facts and circumstances of the case, already discussed. The exception is not applicable because there was no wrongful action with regard to the petitioner's claim for reimbursement during the time of original assessments as the Assessing Authority had neither denied the claim of the petitioner.

87. In M/s Rup Diamonds [supra], the petitioners preferred the petition under Article 32 of the Constitution of India in 1987 to assail the validity of two decisions of the respondent authorities passed in April & August of 1986

whereby request to re-validate and endorse six Imprest Licences for Import of Open General Licence [OGL] items upon the fulfillment of the petitioners' export obligations under Imprest Licences was declined. The petitioner was a recognized Export House for the purposes of Import-Export Policy, 1982-83. Each of the six Imprest Licences had a validity period and a monetary limit, for the import of uncut and unset diamonds with the obligation to fulfill certain export commitment for the export, out of India. The petitioners claimed that they had imported uncut and unset diamonds and had also discharged their export obligation. The petitioners claimed that they were entitled to the facility for the import of OGL items as per the Import-Export Policy, 1982-83 after discharge of their export obligations under the Imprest Licences, as evidenced by the redemption certificates issued in their favour. There were, however, certain time limits to remain eligible for availing such facility. The petitioners sought re-validation after a lapse of several years from the completion of their export obligations. The impugned decisions were passed on such claim for re- validation. The grounds for rejection were inordinate delay in seeking re- validation and also the merits and permissibility of the claim.

87.1. The petitioners alleged that their claims were similar to two other Export Houses, who had filed writ petitions in the year 1984 before the High Court for issuance of appropriate writs to the authorities to re-validate the Imprest Licences. Those writ petitions were initially allowed by the learned Single Judge of the High Court and the Division Bench, later on, affirmed the decision of the learned Single Judge. The Special Leave Petitions, preferred by the Union of India in 1985 and 1986, were dismissed by the Hon'ble Supreme Court. The petitioners said that they made the demand for re-validation immediately after the decision of the High Court and claimed that the rejection of their claims was wholly discriminatory, as there was no basis on any distinction.

87.2. Dismissing the petitioners' writ petition, the Hon'ble Supreme Court had held that the petitioners were re-agitating which they had not pursued for several

years. The petitioners were found not vigilant but were content to be dormant choosing to sit on the fence till somebody else's case came to be decided. There was an unexplained and inordinate delay in preferring the writ petition which was brought after almost a year after the first rejection. In the two cases, claimed by the petitioners to be similar, the applications for re-validation were made within three-four months from the date of the redemption certificates.

87.3. The above decision is found of no assistance to the cause of the respondents.

88. As per the Oxford Dictionary of English, 3rd Edition, 'acquiesce' means 'to accept something reluctantly but without protest' and 'acquiescence' means 'the reluctant acceptance of something without protest'. In the Black's Law Dictionary, 9th Edition, the meaning ascribed to 'acquiesce' is 'to accept tacitly or passively; to give implied consent to [an act]' and to 'acquiescence' is 'a person's tacit or passive acceptance; implied consent to an act'.

89. The distinction between 'acquiescence' and 'delay and laches' has been explained succinctly by the Hon'ble Supreme Court in the case tilted State Bank of India vs. M.J. James, [2022] 2 SCC 301,

39. Before proceeding further, it is important to clarify distinction between 'acquiescence' and 'delay and laches'. Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. [See : Prabhakar v. Sericulture Deptt., (2015) 15 SCC 1]. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das, AIR 1925 Cal 1107. In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or

acceptance, [See : Vidyavathi Kapoor Trust v. CIT, (1992) 194 ITR 584] which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. [See :

Krishan Dev v. Ram Piari, AIR 1964 HP 34] Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and in spite of the infringement takes no action mirroring acceptance. [See :

'Introduction', U.N. Mitra, Tagore Law Lectures -- Law of Limitation and Prescription, Vol. I, 14th Edn., 2016.] However, acquiescence will not apply if lapse of time is of no importance or consequence.

40. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. [See : Vidyavathi Kapoor Trust v. CIT, (1992) 194 ITR 584]. Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars

the respondent from claiming violation of the right of fair representation.

90. Acquiescence does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the person has become aware of it. The petitioner's claim for reimbursement under Section 15[b] of the CST Act was not finalized in a manner prejudicial to it at the time when the audit assessments were made as no specific order was passed refusing the claim. Therefore, it is not the case of the petitioner that the petitioner had witnessed the Assessing Authority dealing with its claim for reimbursement in a manner inconsistent with and in violation of its right. Any delay in processing a refund application, on the other hand, entails statutory interest, which situation cannot be said to be prejudicial to the petitioner. In the case of the petitioners in M/s Guwahati Carbon Limited and M/s Brahmaputra Carbon Limited occasion arose for those petitioners to approach the court when their claims for reimbursement were rejected by the Revenue. Since the case of the petitioner is not similar to those petitioners, it was not proper on the part of the Commissioner to compare the case of the petitioner with those petitioners to bring the doctrine of acquiescence, and delay and laches. In such view of the matter, the Commissioner was not justified to deny the valid claim, on the ground of acquiescence. In the obtaining fact situation, the valid claim of the petitioner cannot be defeated taking resort to the ground of delay and laches, which are not found on the part of the petitioner.

91. Having examined the impugned Order dated 19.09.2022 from all legal standpoints, the clear view this Court has reached is that the impugned Order dated 19.09.2022 cannot stand the scrutiny of law. It turns out to be an order on change in the opinion, without doubt in an impermissible and unauthorized manner, which came into being only upon change in the person holding the office. Consequently, the impugned Order dated 19.09.2022 is liable to be set aside and quashed. It is accordingly set aside and quashed.

92. As a corollary, the proposals for reimbursement claims of the petitioner for the Value Added Tax paid on purchase of Raw Petroleum Coke [RPC] within the State for the Assessment Years : 2006-2007 to 2017-2018 are to be processed forward as per Section 15[b] of the CST Act from the stage at which those were halted by the impugned Order dated 22.09.2022. Therefore, the respondent authorities are directed to process the same in order to bring the reimbursement proposals within a period of 6 [six] weeks from today. The reimbursement proposals for the Assessment Years : 2006 - 2007 to 2011 - 2012 are to be process by taking into consideration the undertaking submitted already by the petitioner. The reimbursement claim for the remaining Assessment Years : 2012 - 2013 to 2017 - 2018 [April, 2017 - June, 2017] are to be processed in terms of Section 15[b] of the CST Act and Sections 50 and 52 of the AVAT Act and other governing laws.

93. The writ petition is allowed to the extent indicated above. There shall, however, no order as to cost.

JUDGE

Comparing Assistant