Judgment:
ORDER
SHEET IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE APO 28.OF 200.WITH WP 7.of 2007 KOLKATA MUNICIPAL CORPORATION & ORS.Versus C.K.SEN & CO.(P) LTD.& ANR.
BEFORE: The Hon'ble CHIEF JUSTICE ARUN MISHRA The Hon'ble JUSTICE JOYMALYA BAGCHI Date :
4. h February, 2013.
Mr.Ashok Banerjee, Advocate Mr.Alok Ghosh, Advocate …for K.M.C.Mr.S.Talukdar, Sr.Advocate Mr.Dip Narayan Mukherjee, Advocate Mr.Amiya Narayan Mukherjee, Advocate …for respondents The Court :- The Kolkata Municipal Corporation has come up in the appeal as against the order dated 23.09.2009 passed by the Single Bench.
Single Bench has without any reasoned order ordered the refund of Rs.17,65,985/- to the respondent C.K.Sen & Co.PVT.LTD.The amount was realised by the Kolkata Municipal Corporation on account of drainage and development fee.
The question raised by the appellant in the appeal is of unjust enrichment, as it is submitted by Mr.Ashok Kumar Banerjee, Senior Counsel appearing with Mr.Alok Ghosh on behalf of the appellant that proper enquiry has not been made as to the passing of liability as on date, on which the decision has been rendered for refund.
It is submitted by Mr.Ashok Kumar Banerjee that Division Bench decision of this Court in (Asian Leather Limited & Anr.
Vs.Kolkata Municipal Corporation & Ors.) reported in 2007 (3) CHN cannot be said to be applicable in case there is unjust enrichment and liability has been passed on to consumer.
As such refund cannot be ordered in view of decision of the Hon’ble Supreme Court in (MAFATLAL INDUSTRIES LTD.AND OTHERS Versus UNION OF INDIA AND OTHERs.reported in (1997) 5 Supreme Court Cases 536 in which it has been laid down where the assessee has passed on the liability to the consumer or third party he is not entitled to restitution or refund.
The fact that levy is invalid need not automatically result in a direction for refund of all collection made in pursuance thereto.
Apex Court has further laid down that the presumption is that the taxpayer has passed on the liability to the consumer (or third party).It is open to him to rebut the presumption.
The matter is exclusively within the knowledge of the taxpayer whether the price of goods included the “duty”.
element also and/or also as to whether he has passed on the liability since he is in possession of all relevant details.
Revenue will not be in a position to have an indepth analysis in the innumerable cases to ascertain and find out whether the taxpayer has passed on the liability.
The burden of proving that the liability has not been passed on should lie on the person who is claiming refund.
All these aspects required to be gone into and examined in depth.
In the circumstances we give the parties liberty to file affidavit-in-opposition and affidavit-in-reply before the Single Bench.
Impugned order is set aside.
All the questions are kept open.
We make it clear that any observation made in the order shall not be taken by Single Bench to be binding, at that time of the final decision in accordance with law.
The decision in (Asian Leather Limited & Anr.
Vs.Kolkata Municipal Corporation & Ors.) reported in 2007 (3) CHN, which has been affirmed by Supreme Court has also to be considered by the Single Bench as submitted by learned Counsel appearing on behalf of the respondent.
The appeal is accordingly allowed, the impugned order is set aside.
No order as to costs.
Let certified photostat copy of this order be made available to the parties, if applied for, upon compliance of all requisite formalities.
(JOYMALYA BAGCHI, J.) GH.
(ARUN MISHRA, C.J.)