ORDER
A.S. Bhate, J.
1. These two petitions are being disposed of by a common order. In WP No.4850 of 1999 the petitioner is seeking a writ against the respondents for directing the respondents to refund the Sales Tax collected under the Andhra Pradesh General Sales Tax Act, 1957 (hereafter referred to as the ‘Act’) for the assessment years 1994-95 and 1995-96. The said Sales Tax was assessed and collected from the petitioner on sale of “poultry feed” manufactured by the petitioner out of ingredients purchased from outside the State. In WP No.4851 of 1999 the petitioner is seeking a direction in nature of writ from the respondents for refund of the Central Sales Tax Act, 1956 assessed and collected from the petitioner for the same assessment years.
2. It is not disputed that the respondents completed final assessment of petitioner for the years 1994-95 and 1995-96 under the provisions of the relevant Sales Tax Act and the petitioner in compliance of the said assessment paid the tax. It is not necessary to mention the quantum. The assessment became final. This is not disputed. The State of Andhra Pradesh had issued G.O. Ms. No.1055 (Revenue) dated 17-10-1994. By the said G.O., exemption was granted to ‘poultry feed’ manufactured with the ingredients which have suffered tax in the Sate or which are exempt from the tax. As the petitioner had manufactured ‘poultry feed’
with ingredients which were purchased from outside the State, the petitioner was not given the benefit of the said G.O. Some other manufacturer of ‘poultry feed’ filed writ petition before this court for seeking similar benefit as was envisaged in G.O. Ms. No. 1055, even though the ingredients of manufacture of ‘poultry feed’, were purchased form outside the State. The said other person is petitioner in Srinivas Poultry and Cattle Feed Private Limited v. Commissioner of Commercial Taxes, A.P., Hyderabad and others, WP No.11563 of 1998 dated 16-12-1998, which was disposed of by a Bench of this Court on 16-12-1998. The Court in the said decision found that the notification was discriminatory without any reason and directed the State Government to give the benefit to the petitioner in that case aiso. Be it noted that the petitioner in Srinivas Poultry’s case (supra) did seek quashing of the notification nor did not the Court quash the same by extended its benefit to the petitioner in that case. The present petitioner states that he came to know about the said decision some time before filing of the present writ petition and it is now claimed that the judgment in favour of the other manufacturer obliges the State to refund the amount of Sales Tax collected from the present petitioner also. It is argued that the judgment in favour of the petitioner in Srinivas Poultry’s case (supra) is a “judgment in rem” and therefore, the petitioners are entitled to benefit by decision in the said judgment. It is argued that the provisions of the Act bar filing of any suit for refund and hence only remedy left is filing of a writ petition for claiming refund.
3. We find after hearing the learned Counsel for the petitioners and the learned Government Pleader for respondents, that there is no merit in the writ petitions. The learned Government Pleader stated that merely because the petitioner in Srinivas Poultry’s case (supra) succeeded in
obtaining a relief, that does not enable the petitioner to file the present writ petitions when the assessment against them had become final and they had never challenged the same by appropriate petitions.
4. It is interesting to note that the learned Counsel for the petitioner as well as the learned Government Pleader rely on one and the same judgment in support of their contentions. The judgment relied on by both the sides is Mafatlal Industries Limited v. Union of India, . The said judgment is rendered by a majority of seven Hon’ble Judges speaking through the Hon’ble Sri Justice B.P. Jeevan Reddy.
5. The learned Counsel for the petitioner argues that under Section 36 of the Act the jurisdiction of the Civil Courts is barred for entertaining any claim in respect of validity of any assessment, order or decision made by any authority under the provisions of the Act and hence they are left with no alternative except to file the writ petitions. It is argued that this position is also accepted in the Mafatlal’s case (supra). We think that the learned Government Pleader is right in contending that when a tax has been collected by authority having jurisdiction, rightly or wrongly, by passing order and when the said order becomes final under the provisions of the Statute under which it is collected, refund of such tax cannot be sought by any other device, including filing of a writ petition, on the basis that some other manufacturer has succeeded in respect of his claim. It has to be noted in the present case that the writ petition of other manufacturer was not for seeking any declaration that the tax was unconstitutional or was collected by any authority which had no inherent jurisdiction. The petitioner therein had only sought extension of benefit of a Government Order which was meant for manufacturers complying particular conditions. Had the petitioner in Srinivas Poultry’s case (supra) challenged the virus
of any provision under which the tax was collected, perhaps some arguable point could have been raised by the petitioner herein. In our view the petitioner herein cannot take benefit of decision in favour of some other firm for claiming refund by filing these writ petitions. The only remedy available to the petitioners was to challenge the assessments in accordance with the provisions of the Act or to seek relief for themselves by filing writ petitions seeking extension of benefit to them of the said G.O., at an appropriate time by challenging the final assessment order.
6. The learned Government Pleader is right in contending that Mafatlal Industries case (supra) fully covers the point and is against the petitioner’s. The following observations in Mafatlal Industries’ case (supra) in para 79 makes the point beyond any doubt whatsoever.
“One of the important principles of law, based upon public policy, is the sanctity attaching to the finality of any proceeding, be it a suit or any other proceeding. Where a duty (or tax) has been collected under a particular order which had become final, refund of that duty cannot be claimed unless the order (whether it is an order of assessment, or adjudication or any other order under which the duty is paid) is set aside according to law. So long as the order stands, the duty cannot be recovered back nor can any claim for its refund be entertained. But what is happening now is that the duty which has been paid under a proceeding which had become long ago, may be an year back, then years back or even twenty or more years back – is sought to be recovered on the ground of alleged discovery of mistake of law on the basis of a decision of a High Court or the Supreme Court. It is necessary to point out in this behalf that for filing an appeal or for adopting a remedy provided by the Act, the limitation generally prescribed is about three months (little more or less
does not matter). But according to the present practice, writs and suits are being filed after lapse of a long number of years and the rule of limitation applicable in that behalf is aid to be three years form the ate of discovery of mistake of law. The incongruity of the situation needs no emphasis. And all this because another manufacturer or assessee has obtained a decision favourable to him. What has indeed been happening all these years is that just because one or a few of the assessees succeed in having their interpretation or contention accepted by a High Court or the Supreme Court, all the manufacturers/assessees all over the country are filing refund claim within three years of such decision, irrespective of the fact that they may have paid the duty, say thirty years back, under similar provisions – and their claims are being allowed by Courts. At! this is said to be flowing from Article 265 which basis, as we have explained herein before, is totally unsustainable.”
At another place in the same paragraph the Hon’ble Supreme Court observes :
“….. even if the authority under the Act holds erroneously, while exercising its jurisdiction and powers under the Act that a transaction is taxable, it cannot be said that the decision of the authority is without jurisdiction.”
Still at another place in the same paragraph the Supreme Court observed :
” An order or decree of a Court does not become ineffective or uneforceable simply because at a later point of time, a different view of law is taken. If this theory is applied universally, it will lead to unimaginable chaos.”
The Supreme Court farther affirmed the legal position by recording following observations:
“An assessee must succeed or fail in his
own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just because in another assessee’s case, a similar point had been decided in favour of the manufacturer/assessee.”
The Supreme Court went further and pointed out that decisions of the Supreme Court saying to the contrary must be held to have been decided wrongly and are accordingly overruled herewith.
7. It will thus be seen that it is not open to any person to make a refund claim on basis of a decision rendered in the case of another person. It is not open for a person to say that the decision of the Court or Tribunal in another person’s case has enabled him to discover mistake under which he has paid tax. A petitioner cannot claim that he is entitled to prefer a writ petition or to institute a suit on discovery of such mistake. A person must fight his own battle and succeed or fail in his proceedings. This is the ratio of the decision in Mafatlal Industries’ case (supra). In this view of the matter, we find absolutely no force in the petitioners cases that they are entitled to the benefit of the G.O. Ms. No.1055, (Revenue) dated 17-10-1994 merely because some other assessee has succeeded in this own writ petition. Consequently the petitioner cannot claim refund on basis of success of some other person i.e., Srinivas Poultry’s case (supra).
8. The learned Counsel for the petitioner then contended that the petitioner paid the tax without passing on the burden to the consumer. There is no undisputable material on this point before us. Assuming for the same of argument that the burden was not passed on to the consumers still then, the petitioner’s case does not become any stronger in view of the legal position stated above. It is only when declaration of unconstitutionality is obtained any one person in respect of tax, that the other
persons also perhaps may be entitled to take advantage of the declaration of law. We are not faced with that situation and it is not necessary to dilate on it any further.
9. For the reasons given above, we are of the firm view that the writ petitions must fail as the assessment as against the petitioners had become final in June, 1996 and July, 1997. Both the writ petitions are dismissed. No order as to costs.