{"id":241755,"date":"2007-10-12T00:00:00","date_gmt":"2007-10-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-andhra-pradesh-anr-vs-ms-concap-on-12-october-2007-2"},"modified":"2017-09-28T02:04:56","modified_gmt":"2017-09-27T20:34:56","slug":"state-of-andhra-pradesh-anr-vs-ms-concap-on-12-october-2007-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-andhra-pradesh-anr-vs-ms-concap-on-12-october-2007-2","title":{"rendered":"State Of Andhra Pradesh & Anr vs M\/S Concap … on 12 October, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Andhra Pradesh & Anr vs M\/S Concap … on 12 October, 2007<\/div>\n
Author: C Thakker<\/div>\n
Bench: C.K. Thakker, Altamas Kabir<\/div>\n
           CASE NO.:\nAppeal (civil)  4832 of 2007\n\nPETITIONER:\nSTATE OF ANDHRA PRADESH & ANR\n\nRESPONDENT:\nM\/S CONCAP CAPACITORS,BALANAGAR, HYDERABAD & ORS\n\nDATE OF JUDGMENT: 12\/10\/2007\n\nBENCH:\nC.K. THAKKER & ALTAMAS KABIR\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 13207 OF 2006
\nC.K. THAKKER, J.\n<\/p>\n
1.\t\tLeave granted.\n<\/p>\n
2.\t\tThis appeal is filed by the State of
\nAndhra Pradesh & Anr. (Revenue for short)
\nagainst common judgment and order dated August
\n31, 2005 in several Revisions. By the impugned
\norder, the High Court allowed Tax Revision
\nCases (TRC) filed by manufacturers, dealers and
\ntraders (assessee for short) and held that
\nCapacitors is one of the items of electronic
\ngoods or components, taxable at a concessional
\nrate of tax under the Andhra Pradesh General
\nSales Tax Act, 1957 (hereinafter referred to as
\nthe State Act) as also under the Central
\nSales Tax Act, 1956 (hereinafter referred to as
\nthe Central Act).\n<\/p>\n
3.\t\tTo appreciate the issue raised by the
\nRevenue, few relevant facts may be stated.\n<\/p>\n
4.\t\tThe respondents in this appeal are
\nmanufacturers, dealers or traders of electronic
\ngoods, components and materials. They are duly
\nregistered under the State Act as well as
\nCentral Act. Their claim was that Capacitors,
\nmanufactured by them, was exigible to tax at a
\nconcessional rate as electronic goods in
\nterms of various Government Orders issued from
\ntime to time and not as electric goods
\nsubject to higher tax. It was their case that
\nthe Assessing Authorities had taken conflicting
\nviews in different cases. In some cases, while
\nmaking assessment orders, they accepted the
\ncase of  manufacturers\/dealers\/traders treating
\nCapacitors as electronic goods and levied
\nconcessional rate of tax; while in other cases,
\nthe Assessing Authorities negatived such claim
\nas to concessional rate of tax and ordered to
\nlevy Capacitors as electric goods. Where the
\nAssessing Authorities had decided against the
\nassessee, the assessee challenged the action
\nbefore the Tribunal and where the issue was
\ndecided by the Authorities in favour of
\nassessee, the Revenue had challenged such
\ndecision. All the matters were, therefore,
\nplaced before the Sales Tax Appellate Tribunal,
\nAndhra Pradesh, Hyderabad. The Tribunal
\nconsidered the rival contentions of the parties
\nas also provisions of the State Act and Central
\nAct and various G.O.Ms. and observed that the
\nitem in question i.e. Capacitors did not
\noperate on electronic principle and could not
\nbe considered as electronic goods or
\ncomponent for the purpose of concessional rate
\nof tax. It, therefore, remanded the cases to
\nthe Assessing Authorities to pass fresh
\nassessment orders giving opportunity to the
\nassessee to produce any material to show that
\nthey sold Capacitors which could be said to be
\nelectronic goods.\n<\/p>\n
5.\t\tBeing aggrieved by the orders passed
\nby the Tribunal, the assessee approached the
\nHigh Court of Andhra Pradesh by filing
\nRevisions. The High Court, on consideration of
\nrelevant provisions of law as also various
\nG.O.Ms. and referring to several decisions,
\nheld that from the relevant material, it was
\nclearly established that Capacitors would
\nfall under the category of electronic goods
\nand the Tribunal was wrong in upholding the
\ncontention of Revenue that the item could not
\nbe said to be electronic goods. The High Court
\nalso held that in G.O.Ms. issued by the Revenue
\nfrom time to time, various items were expressly
\nspecified and Capacitors was one of them. In
\nview of specific mention of the item, the
\nRevenue was bound to grant benefit to the
\nassessee of concessional rate of tax and the
\nTribunal was not justified in considering the
\nquestion on the basis of operating principle.
\nThe said process could have been undertaken by
\nthe Tribunal had there not been a specific
\nmention of the item and the question was
\nrequired to be decided on general principle and
\npractice. But once there was a list of
\nelectronic items prepared by the Electronic
\nCommission and G.O.Ms. referred to those items
\nwherein Capacitors was included, only thing
\nthe Tribunal required to do was to ascertain
\nwhether the item found place in the list or
\nnot. Once the item is included in the list, no
\nfurther inquiry could have been undertaken.
\nAccordingly, all Revisions were allowed and the
\nissue was answered in favour of the assessee.\n<\/p>\n
6.\t\tThe Revenue has challenged in this
\nCourt the decision of the High Court. On July
\n31, 2006 delay was condoned and notice was
\nissued. Affidavits in reply and rejoinder were
\nthereafter filed and the matters were placed
\nfor final disposal.\n<\/p>\n
7.\t\tWe have heard learned counsel for the
\nparties.\n<\/p>\n
8.\t\tThe learned counsel for the Revenue
\nchallenged the decision of the High Court. He
\nsubmitted that the High Court was not at all
\njustified in interfering with the order passed
\nby the Tribunal. He urged that a finding of
\nfact was recorded by the Tribunal which was
\nfinal and could not have been interfered with
\nby the High Court in Revisions. It was also
\nsubmitted that the Tribunal, in any case, had
\nremanded the matter and it was thus not a
\nfinal order which could have been disturbed
\nby the High Court. If the assessee was in a
\nposition to convince the Authorities that he
\nwas entitled to concessional rate of tax, the
\nAuthorities would have decided the case in his
\nfavour. The High Court was, therefore, not
\nright in entertaining and allowing Revisions.
\nThe counsel submitted that where a particular
\nitem is subject to payment of tax and the case
\nof the assessee is that he is not liable to pay
\ntax or is liable to pay tax at a concessional
\nrate, the burden is on him to establish such
\ncase as it is an exception to the general rule.
\nSuch provisions of lawprimary or delegated
\nmust be construed strictly. It was also argued
\nthat the Tribunal was wholly justified in
\nconsidering the question on operating
\nprinciple. The Tribunal noted that so far as
\nCapacitors is concerned, it did not operate
\nas electronic goods but as electric goods.
\nSuch approach which was real and practical,
\ncould not have been objected by the assessee
\nand the High Court could not have commented the
\nbasis on which the Tribunal proceeded to
\nconsider the matter. Finally, it was submitted
\nthat in certain cases, assessee (manufacturers\/
\ndealers\/distributors\/traders) had collected the
\namount of tax at higher rates from the
\ncustomers. Thus, on the one hand, the assessee
\ncontended that the item was subject to payment
\nof concessional rate of tax and on the other
\nhand, it collected the tax at higher rate from
\ncustomers. The assessee thus would retain the
\namount collected from customers towards tax.
\nThis cannot be allowed to be done as it would
\namount to unjust enrichment by the assessee.
\nTo that extent, therefore, in any case, the
\nassessee is liable to pay the amount to the
\nRevenue. On all these grounds, it was submitted
\nthat the appeals deserve to be allowed by
\nsetting aside the order passed by the High
\nCourt and by restoring the order of the
\nTribunal.\n<\/p>\n
9.\t\tLearned counsel for the assessee, on
\nthe other hand, supported the order passed by
\nthe High Court. It was submitted that no error
\nof law can be said to have been committed by
\nthe High Court in deciding the matters and
\nthese are not fit cases to entertain appeals
\nunder the discretionary jurisdiction of this
\nCourt under Article 136 of the Constitution. It
\nwas also submitted that it was clear from the
\nprovisions of law that Capacitors could be
\nsaid to be electronic goods and subject to
\npayment of tax at a concessional rate. In
\nseveral cases, such view was taken by the
\nAssessing Authorities. Since in some cases, a
\ndifferent view was struck, G.O.Ms. were
\nrequired to be issued by the Authorities. Such
\namendments \/ instructions \/ communications were
\ndeclaratory in nature and obviously, therefore,
\nthey were applicable with retrospective effect;
\ni.e. not only to transactions subsequent to the
\nissue of notification but even to prior
\ntransactions. Capacitors, hence, must be
\ntreated as an item covered by the entry
\nelectronic goods and subject to payment of
\ntax at a concessional rate. It was also
\nsubmitted that concessional rate has been
\ngranted on the item in question so as to ensure
\nindustrial growth in the State. A provision
\nwhich has been intended for a laudable object
\nof industrial development, must be liberally
\nconstrued. And, even if two views are possible,
\nthe view favourable to the assessee should be
\nadopted. When the High Court has taken such
\nview, this Court may not interfere with it
\nunder Article 136 of the Constitution. It was
\nalso submitted that the High Court was wholly
\njustified in criticizing the approach adopted
\nby the Tribunal. The High Court was right in
\nholding that operating principle or user
\ntest would apply to those cases where there is
\nno express mention of a particular item in the
\nnotification or G.O.Ms. But once the item is
\nspecified in the list, there should not be
\nfurther inquiry and the assessee would be
\nentitled to concessional rate of tax on the
\nbasis of such entry. In the case on hand,
\nseveral items were specifically mentioned in
\nvarious G.O.Ms. Capacitors, admittedly, was
\none of them. In view of the said position, the
\nTribunal exceeded its jurisdiction in applying
\noperating principle or functioning of the
\nitem and the High Court was right in
\ncriticizing it. The High Court was also
\nconstrained to observe that though the point
\nwas concluded by a decision of the High Court
\nin earlier cases, the Tribunal sought to
\ndistinguish the said decision on the grounds
\nnot permissible in law. The counsel, therefore,
\nsubmitted that no case has been made out by the
\nRevenue to interfere with the order of the High
\nCourt and the appeal deserves to be dismissed.\n<\/p>\n
10.\t\tWe have given anxious consideration to
\nthe rival contentions of the parties. The
\nquestion which is raised before us and which
\nwas raised before the Tribunal as well as
\nbefore the High Court was as to whether the
\nitem Capacitors is electronic goods or
\nelectric goods. In this connection, our
\nattention was invited by the learned counsel
\nfor the parties to the provisions of the State
\nAct as also of the Central Act. The learned
\ncounsel for the assessee also referred to
\nG.O.Ms. No. 520, dated July 20, 1998, issued
\nunder the State Act and G.O. Ms. No. 521 issued
\nunder the Central Act. The relevant part of
\nG.O. Ms. No. 520 reads thus:\n<\/p>\n
(2) For the purpose of this
\nnotification, the term electronic
\ngoods means electronic systems,
\ninstruments, appliances, apparatus,
\nequipment operating on electronic
\nprinciples and all types of electronic
\ncomponents, parts and materials and
\nincludes<\/p>\n
(i)\tconsumer electronics;\n<\/p>\n
(ii)\telectronic test and measuring
\ninstruments;\n<\/p>\n
(iii)\tmedical electronic equipment,\n<\/p>\n
(iv)\t  electronic analytical instruments;\n<\/p>\n
(v)\t  electronic equipment \/ instruments
\nfor nuclear, geo-scientific and
\nother special applications;\n<\/p>\n
(vi)\t  electronic process control
\nequipment;\n<\/p>\n
(vii)\tpower electronic equipment;\n<\/p>\n
(viii)\telectronic industrial automation
\nand control equipment;\n<\/p>\n
(ix)\t  electronic data processing systems
\nand electronic office equipment;\n<\/p>\n
(x)\t  electronic broadcasting equipment;\n<\/p>\n
(xi)\t  electronic communication equipment
\nand\n<\/p>\n
(xii)\telectronic aerospace and defence
\nequipment<\/p>\n
11.\t\tG.O. Ms. No. 521 issued under Central
\nAct is in pari materia to G.O. Ms. No. 520.\n<\/p>\n
12. \t\tOn June 1, 1989, Memo No.23718\/
\nCT.II.2\/89 was issued by the Principal
\nSecretary to Government of Andhra Pradesh,
\nRevenue (CT-II) Department, inviting the
\nattention of the Commissioner of Commercial
\nTaxes to the reference cited in the said Memo
\nand informing him that the Government had
\ndecided that the list of electronic items
\nprepared by the Electronic Commission should be
\nfollowed for the purpose of concessional rate
\nof tax on electronic goods ordered in
\nG.O.Ms.Nos. 520 and 521. The Commissioner was
\nrequested to issue necessary instructions to
\nsubordinate officers under Section 42A of the
\nState Act.\n<\/p>\n
13.\t\tPursuant to the above Memo, a Circular
\nwas issued by the Commissioner of Commercial
\nTaxes on July 13, 1989 which is also relevant
\nand reads thus:\n<\/p>\n
Office of the
\nCommissioner of Commercial Taxes
\nAndhra Pradesh : Hyderabad
\nDated 13.07.1989<\/p>\n
Ref. A1\/1240\/88<\/p>\n
M.V. NATARAJAN, I.A.S.,
\nCOMMISSIONER OF COMMERCIAL TAXES
\nC I R C U L A R<\/p>\n
Sub : APGST Act & CST Act  Reduction in
\nthe rate of tax on Electronic goods
\nReg.\n<\/p>\n
Ref:1. G.O.Ms.No. 520 Rev dt. 20.07.1988.\n<\/p>\n
    2. G.O.Ms.No. 521 Rev dt. 20.07.1988.\n<\/p>\n
    3. Govt. Memo No.23718\/CT.11.2.\/89
\n       dated 01.06.1989<\/p>\n
\tIt is informed that vide G.O.s first
\nand second cited, Government were pleased
\nto reduce the rate of tax to 2 paise on
\nElectronic goods with effect from
\n1.7.1988 mentioning a broad
\nclassification of electronic goods such
\nas Consumer Electronics, Electronic test
\nand measuring instruments, General
\nElectronic Equipment etc.<\/p>\n
\tSeveral representations have been
\nreceived from the dealers requesting to
\nclarify the specific items which falls
\nunder the classification, mentioned in
\nthe G.O. first cited, a copy of the
\nGovernment Memo, third cited is enclosed
\nalong with a copy of the list prepared by
\nthe Electronic Commission duly
\nauthenticated.\n<\/p>\n
2.\tThe Assessing authorities are
\nrequested to take action accordingly.\n<\/p>\n
3.\tThis reference may please be
\nacknowledged to next authority.\n<\/p>\n
\t\t\t\t\tSd\/-\n<\/p>\n
\t\t\t\tM.V. NATARAJAN
\n\t\t COMMISSIONER OF COMMERCIAL TAXES
\n\t\t\t\t\t\t(emphasis supplied)<\/p>\n
14.\t\tA list of electronic items prepared by
\nthe Electronic Commission was also produced
\nbefore the Tribunal as well as before the High
\nCourt and before us. Item No.13.0 relates to
\nElectronic Components under which at Item
\nNo.13.39 is shown Plastic Film Capacitors.\n<\/p>\n
15.\t\tThus, from the above G.O.Ms. and
\nCircular issued by the Commissioner, it is
\nclear that in pursuance of several
\nrepresentations received from Dealers
\nrequesting to clarify the specific items
\nfalling under electronic goods that the
\nClassification Memo was issued by the
\nGovernment and the Circular by the Commissioner
\non the basis of the list prepared by the
\nElectronic Commission. The said list expressly
\ncontained an item Capacitors. In view of
\nspecific reference to Capacitors, in our
\nopinion, the High Court was right in relying on
\nthe said item and in holding that Capacitors
\ncould be said to be electronic goods and was
\ncovered by a concessional rate of tax under the
\nAct.\n<\/p>\n
16.\t\tThe learned counsel for the assessee
\nstated that on the basis of the list prepared
\nby Electronic Commission, concessional rate of
\ntax was recovered on items mentioned in the
\nlist. A similar question came up for
\nconsideration before the High Court of Andhra
\nPradesh in State of Andhra Pradesh v. Amara
\nRaja Batteries,<\/a> [1998 (111) STC 664 (AP)].
\nThere, the Court was concerned with NICD
\nBatteries. The Court considered G.O.Ms. 520 and
\n521 and item No. 13.93 of the list (Other <\/span>
\nbatteries) declared by Electronic Commission
\nand held that it was entitled to concessional
\nrate of tax.\n<\/p>\n
17.\t \tThe Court observed:\n<\/p>\n
     Since according to the list
\nprepared by the Electronics
\nCommission, the batteries are
\nelectronic components and since the
\nelectronic components are one of the
\nitems which are eligible for
\nconcessional rate of duty and since
\nthe clarification in the list prepared
\nby the Electronics Commission is
\ntreated as part of the G.O. the
\nbatteries manufactured by the assessee
\nare eligible for concessional rate of
\nduty under G.O. Ms. No. 520, Revenue
\ndated July 20, 1988 and G.O. Ms. No.
\n521 Revenue dated July 20, 1988 issued
\nunder the A.P. General Sales Tax Act
\nand also Central Sales Tax Act.\n<\/p>\n
18.\t\tIt appears that the Revenue challenged
\nthe decision of the High Court by filing Civil
\nAppeal Nos. 723-25 of 1999, but a three Judge
\nBench of this Court dismissed them on March 21,
\n2001 observing that there was no good reason
\nto interfere with the order under appeal.\n<\/p>\n
19.\t\tOnce again, the issue came up for
\nconsideration before the same Court in India
\nExtrusion v. Commission of Commercial Taxes,
\nA.P., Hyderabad, (2001) 124 STC 474. In India
\nExtrusion, the Court was considering the item
\nof Cable Joining Kits. Relying on G.O.Ms.Nos.
\n520 and 521 and taking recourse to the list of
\nelectronic goods prepared by Electronic
\nCommission, the High Court held that it could
\nbe said to be electronic goods and was
\nsubject to levy at the concessional rate of
\ntax. The Revenue accepted the judgment and had
\nnot challenged the said decision.\n<\/p>\n
20.\t\tThe High Court, in our opinion, was
\nright in observing that when the Electronic
\nCommission had prepared a list which contained
\nthe item Capacitors, it had to be accepted by
\nthe Revenue and tax can be levied only on the
\nbasis of such classification. The High Court
\nwas, therefore, right when it stated:\n<\/p>\n
     The contention of the learned
\nCounsel for the petitioners is that
\nwhen the Government has issued
\nclarificatory memo with reference to
\nG.O. Ms. Nos. 520 and 521, adopting
\nthe list prepared by the Electronics
\nCommission for the purpose of
\nconcessional rate of tax as electronic
\nitems or electronic components, the
\nsame holds good even for the
\nsubsequent notifications, as there was
\nno material variation in the contents
\nof the subsequent Government Orders
\nexcept variation in the rate of tax.
\nBut, on the other hand, the contention
\nof the department is that unless a
\nparticular item operates on electronic
\nprinciple the same would not be
\nconsidered as “electronic goods” or
\ncomponent for the purpose of
\nconcessional rate of tax. We are
\nunable to accept the said contention
\nof the Revenue on the first principle.
\nIf a particular item of goods or
\ncomponent, part or material is not
\nspecified in the list either in the
\nGovernment Order or in the list of
\nelectronic items that are prepared by
\nthe Electronics Commission, then only
\nthe question would arise for
\nconsideration whether a particular
\nitem can be treated as an electronic
\ngoods or component or material,
\ndepending upon its operating
\nprinciple, but not otherwise.\n<\/p>\n
Admittedly, the list of electronic
\nitems prepared by the Electronics
\nCommission shows that there are as
\nmany as 16 sub-headings under which
\nvarious items that are listed or
\nspecified. In the present case, we are
\nconcerned with “plastic film
\ncapacitors”. The said item finds place
\nunder the sub-heading “electronic
\ncomponents.” In the list of items
\nprepared by the Electronics Commission
\nthe plastic film capacitors is
\nspecified at 13.39. Similarly, there
\nare other capacitors such as paper
\ncapacitors at 13.38, ceramic
\ncapacitors at 13.42, and mica
\ncapacitors at 13.43. Therefore, it is
\nclear that the item in question is
\nclearly specified as one of the
\nelectronic items contained in the list
\nprepared by the Electronics
\nCommission. In fact, when similar
\nissue came up for consideration before
\nthis Court in Amara Raja Batteries,
\n[1998] 111 STC 664, while considering
\nG.O. Ms. Nos. 520 and 521, referred
\nand relied upon the list prepared by
\nthe Electronics Commission as was
\nordered to be adopted by the
\nGovernment by its memo dated June 1,
\n1989. As batteries, which fell for
\nconsideration, was found under item
\n13.93, the division Bench accepted the
\nclaim of the assessee and upheld the
\ndecision of the Tribunal where the
\nTribunal allowed the claim of the
\nassessee treating the batteries as
\nelectronic component. But, however,
\nthis decision was distinguished by the
\nTribunal in the impugned orders on
\nunsustainable grounds.\n<\/p>\n
                    (emphasis supplied)<\/p>\n
21.\t\tTo us, the High Court was also right
\nin indicating that when the item has been
\nspecifically included in the list prepared by
\nElectronic Commission, the Tribunal could not
\nhave applied functional test, operating
\nprinciple or user test. A limited inquiry
\nwhich was required to be made by the Tribunal
\nwas whether the item had been included in the
\nlist prepared by the Electronic Commission. If
\nany item is included in the said list, it has
\nto be treated as such and tax has to be levied
\non that basis. But if the item is not included
\nin the list, it is open to the Tribunal to
\nconsider its placement on the basis of
\nfunctional test as to whether such item could
\nbe said to be electronic goods. The item
\nCapacitors has been expressly included in the
\nlist prepared by the Electronic Commission and
\nhence it was not open to the Tribunal to apply
\noperating principle or user test and the
\nHigh Court was wholly justified in interfering
\nwith the order passed by the Tribunal.\n<\/p>\n
22.\t\tThe learned counsel for the assessee
\nalso urged that the underlying object of
\ngranting concessional rate of tax to Capacitors
\nwas industrial development. Relying on
\nCommissioner of Income Tax, Amritsar v. Straw
\nBoard Manufacturing Co. Ltd.,<\/a> (1989) Supp (2)
\nSCC 523, Commissioner of Sales Tax v.
\nIndustrial Coal Enterprises,<\/a> (1999) 2 SCC 607
\nand Collector of Central Excise, Meerut v.
\nMaruti Foam (P) Ltd.,<\/a> (2004) 6 SCC 722, it was
\nurged that whenever a concession has been
\ngranted so as to bring about industrial
\nexpansion and growth, the provision must be
\nliberally construed. In view of the fact,
\nhowever, that according to us, item relating to
\nCapacitors has been expressly included in the
\nlist prepared by Electronic Commission, it is
\nnot necessary for us to enter into larger
\nquestion as, in our judgment, the assessee had
\nrightly succeeded and the High Court was
\njustified in allowing Revisions.\n<\/p>\n
23.\t\tThe learned counsel for the Revenue,
\nno doubt, submitted that the Tribunal merely
\nremanded the matter to the Authorities to
\ndecide them in accordance with law and the High
\nCourt ought not to have interfered with the
\norder. In our opinion, however, the submission
\nis ill-founded. As rightly held by the High
\nCourt, the Authorities were required to proceed
\non the basis of list prepared by Electronic
\nCommission. Since the Electronic Commission
\nincluded Capacitors as one of the items, it
\nwas not open to the Tribunal to enter into the
\nquestion as to the functions to be performed by
\nCapacitors and to remit the matter to decide as
\nto whether it would be covered by the item
\nelectronic goods or electric goods.  Hence,
\nthough the matter was remanded, the High Court
\nwas justified in interfering with the said
\norder as it was not open to the Tribunal to
\npass such order.\n<\/p>\n
24.\t\tFinally, it was submitted that some of
\nthe manufacturers, dealers and traders had
\ncollected the tax at the higher rate from their
\ncustomers and now they are seeking relief from
\nthe Court to pay tax at concessional rate.  If
\nthe contention of the assessees is upheld and
\nthey will be allowed to pay tax at a
\nconcessional rate, they would thereby unjustly
\nenrich themselves inasmuch as on one hand they
\nhad collected much more amount towards tax and
\nwill now pay lesser amount of tax to the
\nGovernment.  No assessee can be allowed unjust
\nenrichment.  Where an assessee is not entitled
\nto a particular benefit, he cannot be permitted
\nto retain such benefit. [vide Mafatlal
\nIndustries Ltd. v. Union of India,<\/a>  (1997) 5
\nSCC 536].\n<\/p>\n
25.\t\tIn the affidavit in reply, the
\nallegation has been emphatically denied by the
\nassessee.  It was the case of the assessee that
\nthe allegation was factually incorrect that the
\nassessees had collected tax at a higher rate
\nand they now want to pay tax at a concessional
\nrate. But in view of assertion by the Revenue
\nand denial by the assessee, it would be
\nappropriate if we do not enter into the said
\nquestion by granting liberty to the Revenue to
\nconsider the question independently.\n<\/p>\n
26. \t\tWe, therefore, hold that the item
\nCapacitors is subject to payment of tax at a
\nconcessional rate. The order passed by the High
\nCourt, to that extent is, therefore, upheld.
\nIt is, however, made clear that if any assessee
\nhad collected an amount at a higher rate of tax
\nfrom its customers than the concessional rate
\nas held by us, it is open to the Revenue to
\ntake appropriate proceedings in accordance with
\nlaw for the recovery of such amount.  The
\nexcess amount, if any, recovered by any
\nassessee towards tax shall have to be paid by
\nsuch assessee to the Government.\n<\/p>\n
27.\t\tFor the foregoing reasons, the appeal
\ndeserves to be disposed of and is accordingly
\ndisposed of subject to the observations made by
\nus hereinabove. On the facts and in the
\ncircumstances of the case, however, there shall
\nbe no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Andhra Pradesh & Anr vs M\/S Concap … on 12 October, 2007 Author: C Thakker Bench: C.K. Thakker, Altamas Kabir CASE NO.: Appeal (civil) 4832 of 2007 PETITIONER: STATE OF ANDHRA PRADESH & ANR RESPONDENT: M\/S CONCAP CAPACITORS,BALANAGAR, HYDERABAD & ORS DATE OF JUDGMENT: 12\/10\/2007 BENCH: C.K. THAKKER & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-241755","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Andhra Pradesh & Anr vs M\/S Concap ... on 12 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-andhra-pradesh-anr-vs-ms-concap-on-12-october-2007-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Andhra Pradesh & Anr vs M\/S Concap ... on 12 October, 2007 - 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