Judgment :- 1. Interesting questions of law which are of importance are raised in this case: What is the effect of an order passed by an Appellate Assistant Commissioner of Sales-tax in setting aside or cancelling an order of assessment and remanding the case for a fresh consideration? Does the tax paid in pursuance to the notice of demand pending the appeal becomes refundable? What is the scope of G. O. No. 48/79/TD dated 21-3-1979, stating that the "collection of sales tax" under C. S. T. Act 1956, on inter-State sale of rubber by rubber planters in Kerala during the period prior to 1-6-1978 "shall be waived"? These are the points which call for decision in this case. 2. The petitioner in the Original Petition is a company registered under the Companies Act. It carries on business as planter and producer of rubber. For the assessment years 1970-71 to 1974-75 the petitioner was assessed under Central Sales-tax Act. That was so done on the ground that the petitioner is a dealer. The Assessing Authority took the view that though the petitioner is a producer, it was formed with the intention to carry on business activities and so the turnover of inter-State sales of rubber produced in the estates of the Company is assessable to tax under the Central Sales Tax Act. Assessments were accordingly made for the years 1970-71,1971-72,1972-73,1973-74 and 1974-75. In pursuance to the assessment orders, notices of demand were served on the petitioner for all the years. Tax became due and payable as per the notices of demand so served on the petitioner. The petitioner filed appeals before the Deputy Commissioner of Sales-tax and Agricultural Income-tax and assailed these assessment orders. Since the tax assessed became payable under the different notices of demand for all the five years, the petitioner had also filed appropriate petitions before the Appellate Authority seeking stay of the recovery of the tax assessed. For the years 1970-71 and 1971-72 the petitioner had to invoke the aid 'of this Court finally to get the relief of stay of collection of tax pending the appeals for the two years. For the years 1972-73 to 1974-75, the Appellate Authority itself granted the interim relief. In both the cases some amounts were directed to be paid. By order dated 1-7-1977 for the years 1970-71 and 1971-72 evidenced by Ext. For the years 1972-73 to 1974-75, the Appellate Authority itself granted the interim relief. In both the cases some amounts were directed to be paid. By order dated 1-7-1977 for the years 1970-71 and 1971-72 evidenced by Ext. P6 the Appellate Assistant Commissioner of Agricultural Income-tax and Sales-tax, Alleppey, cancelled the two assessments and remanded the cases back to the assessing officer for a de novo disposal in accordance with law. For the years 1972-73,1973-74 and 1974-75 by Ext. P7 order dated 5-11-1977 the Appellate Assistant Commissioner of Agricultural Income-tax and Sales-tax, Alleppey cancelled the assessments and remanded the cases back to the officer for fresh investigation and disposal of the cases in accordance with law. According to the petitioner, pending the appeals, it has paid substantial amounts towards tax assessed as per the assessment orders. It was so paid in pursuance to an order passed in O. P. No. 3640 of 1976 and C. M. P. No. 12859 of 1976 for the years 1970-71 and 1971-72. For the years 1972-73 to 1974-75 substantial amounts were paid towards the tax assessed pending the appeals as per orders passed by the Appellant Assistant Commissioner. The amounts by way of tax were paid in pursuance to orders passed by the appellate authority and the court. This is not a case where any amount by way of tax was paid in pursuance to any provisional assessment or under R.21 of the K.G.S.T. Rules. This is the case for all the 5 (five) years. The levy of tax was disputed for all the five years. According to the petitioner it is entitled to refund of the amount of Rs. 2,80,512.10 paid during the pendency of the appeals. The petitioner further claims that no tax under C.S.T. Act is payable till 1-6-1978 as per Ext. P8 dated 21-3-1979-G.O. No.48/79/TD. Therein the Government had ordered that the collection of sales-tax due under the Central Sales-tax Act 1956, on inter-State sale of rubber by rubber planters in Kerala during the period prior to 1-6-1978 shall be waived. It is the petitioner's case that in view of the above Government order itself, there is no question of any assessment being effected or made at all for the period up to 31-5-1978 and so the petitioner has a case that the petitioner is entitled to refund of the amounts paid already. Stating the above facts the petitioner filed Ext. It is the petitioner's case that in view of the above Government order itself, there is no question of any assessment being effected or made at all for the period up to 31-5-1978 and so the petitioner has a case that the petitioner is entitled to refund of the amounts paid already. Stating the above facts the petitioner filed Ext. P1 petition before the Assistant Commissioner of Sales-tax, Special Circle, Alleppey dated 13-6-1980. By Ext. P12 communication the Assistant Commissioner of Sales-tax, Alleppey informed the petitioner that the petitioner is not eligible for the refund of tax already paid since Government have only waived the collection of Central Sales-tax prior to 1-6-1978. This order, Ext. P12 is dated 16-6-1980. In this Original Petition the petitioner seeks to quash Ext. P12 and also prays that this court may be pleased to direct the 6th respondent the Assistant Commissioner of Sales-tax, Special Circle, Alleppey to make the refund of an amount of Rs. 2,80,512.10 being the amount deposited by the petitioner towards the alleged tax liability as directed by this Court for the year 1970-71 and 1971-72 and for the other years by the Appellate Assistant Commissioner, . Sales tax, Appelley. The petitioner has also prayed for grant of other appropriate reliefs. 3. On behalf of the respondents 1 to 3 a detailed counter-affidavit has been filed dated 27th (March) 1982.. The right of the petitioner to claim refund has been disputed by the respondents. It is also stated in the counter-affidavit that the amount paid towards the Central Sales-tax by the Company for the years 1970-71 to 1974-75 comes to Rs. 2,80,512.10. The plea taken in the counter-affidavit is that, though Ext. P8 order has been passed by the Government, "it is silent with regard to the course of action to be taken in cases where department has actually realised Central Sales-tax on such transactions before issue of the order." The counter affidavit further proceeds to state that "the Government order as it stands at present does not impose any liability on the part of the department to make refund of Central Sales-tax realised from the petitioner long before 21-3-1979". The conclusion stated is that the "petitioner company is not eligible for refund of Central Sales Tax paid by virtue of the appellate orders setting aside the relevant assessments." 4. The conclusion stated is that the "petitioner company is not eligible for refund of Central Sales Tax paid by virtue of the appellate orders setting aside the relevant assessments." 4. The matter was argued at length before me by the counsel for the petitioner, Sri K. A. Nayar, and Mr. Karunakaran Nambiar, Government Pleader, appearing for the respondents. It seems to me, that the contention, of the petitioner, that the moment the order of assessment is set aside or cancelled in appeal the amount paid in pursuance to the order (and/or notice of demand) which was set aside or cancelled becomes refundable, is well founded. Such refund due can be withheld only if any appellate or revisional authority stays the operation of the order so passed in the appeal, in appropriate proceedings. Such refund can also be withheld if there is any statutory provision enabling the assessing or other authority to do. Government Pleader did not bring to my notice any such proceedings by any appellate or revisional authority or any statutory provision as aforesaid. There is no statutory provision which enables the assessing authority to withhold the refund due. In civil law, when a decree is confirmed, varied or reversed in appeal, the original decree gets merged in the appellate decree and it is the appellate decree that subsists and is operative and capable of enforcement. Therefore, whether there is confirmation, variation or reversal of decree of a lower court by an appellate court, the executable decree thereafter is certainly the appellate decree the affirmed decree, the varied decree or the reversed decree Vide Meenakshi Amma v. Rama Kurup (1913 KLT. 389). Substantially, the same principles apply to the proceedings under the Taxation Laws as well, unless there is anything contrary in the particular taxation law, expressly or by necessary implication. Government Pleader was not able to bring to my notice any provision statutory or otherwise, which makes the above principle inapplicable for proceedings under Kerala General Sales-tax Act 1963. Moreover, in a case arising under the Income-tax Act 1922, in Income-tax Officer v. Seghu Buchiah Setty (1964 (52) ITR. 538) at page 54? Government Pleader was not able to bring to my notice any provision statutory or otherwise, which makes the above principle inapplicable for proceedings under Kerala General Sales-tax Act 1963. Moreover, in a case arising under the Income-tax Act 1922, in Income-tax Officer v. Seghu Buchiah Setty (1964 (52) ITR. 538) at page 54? it was held by the Supreme Court: "If the original order has been destroyed or replaced by the appellate order, then the notice of demand and all other steps based upon the original order must be deemed to have become ineffective" In Purshottam Deval Varshney and another v. Commissioner of Income -tax, U.P., and others. (1974) 94 ITR. 187), a Bench of the Allahabad High Court observed at page 190: "It follows, therefore that if an assessment order is set aside, the notice of demand becomes ineffective and the tax already paid under such a notice of demand becomes refundable. If a fresh assessment is made, the tax determined as a result of the fresh assessment order again becomes due and payable only after a fresh notice of demand is served upon the assessee." In Orient Paper and Industries Ltd. v. Sales Tax Officer, (1982) 50 STC. 211, delivering the judgment of the Bench Chief Justice R. N. Misra, as he then was, held: "it follows that with the setting aside of the assessments by the Member, Additional Sales Tax Tribunal, the amounts paid by the assessee-petitioner against demands which have been set aside become refundable and the petitioner's applications, therefore were not premature." 5. Counsel for the Revenue, Mr. Karunakaran Nambiar brought to my notice S.44 of the Kerala General Sales-tax Act and the decision reported in Mahendra J. Thacker & Co. v. Commissioner of Income-tax (1983) 139 I.T.R. 793) and contended that even if the effect of the appellate orders is to supersede the assessment orders and render them'non-est', the Revenue is entitled to effect fresh assessment orders for those years and till such fresh orders are passed, the amounts paid are not refundable. It may be that the Revenue is entitled to pass fresh assessment orders and by the order of remit it may further be, that the assessment proceedings can be said to be pending for those years. It may be that the Revenue is entitled to pass fresh assessment orders and by the order of remit it may further be, that the assessment proceedings can be said to be pending for those years. But such power to re-do the assessments will not clothe the Revenue with the power to retain the amounts paid as per the assessment orders which have been set aside or nullified. Only after passing fresh assessment orders, and serving notices of demand, the liability to pay any tax arises. The quantum of tax should be determined in accordance with the procedure laid down by law. In my opinion, S.44 of the Act deals with a different situation. The said provision has no application here. S.44 of the Act cannot be said to be exhaustive providing for all situations when an assessee is entitled to get refund of tax paid. So also the decision reported in Mahendra J. Thacker & Co. v. Commissioner of Income-tax (1983) 139 I.T.R. 793) has no application here. 6. In the light of the decisions of courts referred to above, I hold that the various assessments to sales-tax for the years 1970-71 to 1974-75 having been cancelled by Exts. P6 and P7 appellate orders, the amounts paid towards the various demands for the said years, pending the appeals have become refundable. As it is, there are no assessment orders or notices or demand at all for those years in the eye of law. It should be noted that in the Kerala General Sales-tax Act, there is no section corresponding to Ss.240 and 241 of the Income-tax Act, 1961 or S.14-D of the Orissa Sales-tax Act. The Assistant Commissioner (Assessment) of Sales-tax was totally in error, in not refunding the amount as soon as the assessments were cancelled and request was made by the petitioner to refund the amounts paid towards the assessments pending the appeals. On this short ground the petitioner is entitled to succeed and Ext. P12 deserves to be annulled. The petitioner is also entitled to a direction that the amount of Rs. 2,80,512.10 paid towards tax for the years 1970-71 to 1974-75 is liable to be refunded to him by the 6th respondent. 7. The petitioner's counsel further contended that in view of Ext. P12 deserves to be annulled. The petitioner is also entitled to a direction that the amount of Rs. 2,80,512.10 paid towards tax for the years 1970-71 to 1974-75 is liable to be refunded to him by the 6th respondent. 7. The petitioner's counsel further contended that in view of Ext. P8 order of Government, G. O. No. 48/79/TD dated 21-3-1979, there cannot be fresh assessments in pursuance to the orders passed by the appellate authority in Exts. P6 and P7 and even if fresh assessments are so made, no tax can be levied or collected in pursuance thereto in view of the aforesaid Government Order. Ext. P8 order is to the following effect: "GOVERNMENT OF KERALA Abstract Taxes Sales tax Salestax due on the interstate sale of rubber by planters Waiver Oders issued TAXES (D) Department G. O. No. 48/79/TD Dt. Trivandrum 21-3-1979 Read: 1. From the Association of Planters of Kerala, Kaloor, Cochin letter No. A/II/1-4-dt. 31st July 1978. 2. From the Board of Revenue correspondence resting with D. O. letter No. C1-47841076/TD dt. 22-1-1979. ORDER The Government order that the collection of sales-tax due under the General Sales Tax Act, 1956 on the inter-state sale of rubber by rubber planters in Kerala during the period prior to 1st June, 1978 shall be waived. (By order of the Governor) C. P. NAIR, SECRETARY TO GOVERNMENT." Counsel also placed reliance on the decision reported in Nand Lal and Sons v. The Excise and Taxation Commissioner (1983) 52 STC. 249) and contended that the ratio of the said decision is fully applicable here also and in this view of the matter the ground on which the refund of Central Sales Tax paid was refused and contained in the following words in Ext. P12 is a clear legal error and Ext. P12 deserves to be quashed. "With reference to your letters cited requesting for the refund of C. S. T. paid for the period 70-71 to 74-75 it is informed that you are not eligible for the refund of tax already paid since the Government have only waived the collection of C. S. T. prior to 1-6-1978 as as per G. O. MS. 48/79/TD dated 21-3-79". 8. In my opinion, the ratio of the decision reported in Nand Lal and Sons v. The Excise and Taxation Commissioner (1983) 52 S. T. C. 249) at 250, is clearly applicable to this case. 48/79/TD dated 21-3-79". 8. In my opinion, the ratio of the decision reported in Nand Lal and Sons v. The Excise and Taxation Commissioner (1983) 52 S. T. C. 249) at 250, is clearly applicable to this case. The head note to the reported decision itself is instructive and it is to the following effect: "The petitioner, a dealer in cotton seeds, was assessed to tax under the Haryana General Sales Tax Act, 1973, on the purchase turnover of cotton seeds for the period 14th May, 1964 to 27th February, 1969, for which period a direction was issued by the Excise and Taxation Commissioner to the effect that no tax on cotton seeds be realised. The petitioner having already paid the tax made an application for the refund of that amount, which was refused by the sales tax authorities. On a writ petition: Held, that in the face of the direction of the Excise and Taxation Commissioner, the petitioner would be entitled to the refund. To deny the relief to the petitioner, besides other legal infirmities, would also amount to discrimination inasmuch as it would be putting persons who had paid the tax in a worse position than those who did not care to do so." I agree with the said decision and hold that on this ground also the petitioner is entitled to the reliefs prayed for. 9. In the result, I quash Ext. P12 dated 16-6-1980 passed by the Assistant Commissioner of Sales Tax, Special Circle, Alleppey. I hereby further direct the 8th respondent, Assistant Commissioner of Sales-tax, Special Circle, Alleppey, to refund the amount of Rs. 2,80,512. 10 to the petitioner, within four weeks from today, The Original Petition is allowed with costs.