ORDER M.Y. Eqbal, J. 1. In these applications under Article 226 of the Constitution of India, the petitioner- M/s. Bharat Coking Coal Limited seeks a direction upon the respondents to issue a demand notice showing excess payment of advance sales tax and central sales tax paid by the petitioner according to returns for the year 1986-87 so that the petitioner can make an application for refund of the said amount in the prescribed form and further for a direction for refund of the excess amount in view of the fact Page 0670 that the original assessment order dated 30.11.1990 has been set aside by the appellate authority. 2. The petitioner-unit is registered under the Bihar Finance Act, 1981 and has been filing returns under the said Act and also under the Central Sales Tax Act, 1956 before the Commercial Taxes Authority, Sindri Circle, Jharia. In compliance to the notice issued for assessment for the year 1986-87, the representative of the petitioner appeared before the Assessing Authority who passed an order of assessment dated 30.11.1990 and served demand notice upon the petitioner showing huge demand of tax. Being aggrieved by the said assessment order, the petitioner preferred appeal before the Joint Commissioner of Commercial Taxes (Appeals), Dhanbad being SD ST-12/90-91 who after hearing the parties set aside the assessment order and remanded the matter back to the Assessing Authority for passing a fresh order of re-assessment in the light of the directions and observations made in the said order. It is stated by the- petitioner that the appellate order dated 29.4.1992 was communicated to the petitioner as well as the Assessing Officer and in pursuant to the appellate order of remand, it was incumbent upon the assessing authority to initiate re- assessment and complete it before the expiry of two years within the date of communication of the aforesaid appellate order. In pursuant to the directions issued by the appellate authority the assessing authority directed the petitioner to appear with complete books of accounts for the year 1986-87. The petitioners case is that hearing of the case was adjourned time to time and several dates were fixed, but no reassessment order has been passed till date, although the same should have been passed before the expiry of two years from the date of communication of the appellate order. The petitioners case is that hearing of the case was adjourned time to time and several dates were fixed, but no reassessment order has been passed till date, although the same should have been passed before the expiry of two years from the date of communication of the appellate order. The petitioners further case is that, for non-passing of re-assessment order within two years from the date of communication of the appellate order, the entire payment made by the petitioner for the years 1986-87 is refundable to the petitioner. Further case of the petitioner is that the Assessing Officer instead of issuing demand notice showing excess payment or giving refund of the same, issued several notices dated 4.5.2001, 30.7.2001 and 17.9.2001 directing the petitioner to produce the various documents for the purpose of passing reassessment order. It is stated by the petitioner that in compliance of the said notices, the petitioner stated that as per express provision of Section 24 of the Act, no re-assessment order could be passed at that stage. The contention of the petitioner is that the petitioner is entitled for the refund of the entire advance/admitted tax amounting to Rs. 25,90,987/-, and Rs. 99,41,375.10 being the central sales tax since there has been no determination of the tax payable by the petitioner by Assessing Officer by passing re-assessment order. 3. In the counter affidavit filed by the respondents, it is stated that the petitioner is not entitled to claim any amount which was paid by it according to returns filed by the petitioner because the amount paid is not an advance tax, but it is a tax which was realized from the customer at the time of sale and it is an admitted tax paid by the petitioner. The respondents case is that after remand of the case by the appellate Court, date was fixed for re-hearing within the limitation period of two years, but the petitioner failed to cooperate with the Department for re-assessment and as such, the petitioner is not entitled to any relief whatsoever. It is stated that the petitioner has realized tax during the relevant period to the tune of Rs. 36,25,885.10 which has been admitted in the returns filed by the petitioner and has not been challenged, but Page 0671 out of the said amount of tax collected by the petitioner, only Rs. It is stated that the petitioner has realized tax during the relevant period to the tune of Rs. 36,25,885.10 which has been admitted in the returns filed by the petitioner and has not been challenged, but Page 0671 out of the said amount of tax collected by the petitioner, only Rs. 25,90,987/- has been paid which cannot be refunded to it in any circumstances whatsoever. Similarly the petitioner realized central sales tax to the tune of Rs. 74,44,369.86 which has been admitted in the return filed by the petitioner. In no case the said amount is refundable to the petitioner. The respondents further case is that the building in which the office of the Deputy Commissioner of Commercial Taxes was located, caught fire and the whole records burnt to ashes. Therefore, notices were issued to the parties to come with the records lying with them so that the office records can be reconstructed, but in the present case, the petitioner treated those notices as notice of rehearing of remand proceeding for reassessment which is totally false and concocted. 4. We have heard Mr. Binod Poddar, learned Counsel appearing for the petitioner-assessee and Mr. K.K. Jhunjhunwala appearing for the Revenue. 5. The undisputed facts are that the petitioner filed its returns under the provisions of Bihar Finance Act, 1981 and the Central Sales Tax Act, 1956 before the Commercial Taxes authority, Sindri circle, Jharia for the assessment year 1986-87. The assessing authority passed final order of assessment on 30.11.1990 and assessed the total tax of Rs. 39,73,704=77 and Rs. 3,33,45,681=06 under the B.S.T. and C.S.T. Act respectively. After deducting the amount of tax, the Assessing Officer issued demand notice to give the balance amount. The petitioner-assessee, therefore, preferred an appeal against the said order passed by the Assessing Authority. From perusal of the order passed by the Appellate Authority, it is evidently clear that the appellate authority remanded the matter back to the Assessing Authority for reconsideration as to whether he was Justified in assessing the tax payable by the petitioner by taking into consideration the-figures of cess and royalty which was accrued on the value of domestic consumption of coal by the assessee to its employees free of cost as per wage board Agreement and also the Assessing Authority was justified in adding the value of cess and royalty in the total sale. 6. 6. Be that as it may, after remand, the Assessing Authority has not passed the final order for the reasons stated in the affidavit. Now the question that falls for consideration is whether in the aforesaid premises, the amount of tax deposited by the petitioner is liable to be refunded in view of Section 24 of the Bihar Finance Act, 1981. Section 24 of the Act reads as under: 24. Period of limitation for completion of assessment proceedings. - Except a proceeding under Sub-section (5) of Section 17, Section 18 and Sub-section (1) of Section 19 no proceedings for assessment of the tax payable by a dealer under this part in respect of any period shall be initiated and completed except before the expiry of four years from the expiry of such period: Provided that a proceeding for re-assessment in pursuance of or as a result of an order on appeal, revision and reference or review shall be initiated and completed before the expiry of two years from the date of communication of such order to the assessing authority. 7. From bare perusal of the aforesaid provision, it is manifestly clear that subject to the provisions of Section 17(5), Section 18(1) and Section 19 of the Act, the assessment proceeding shall have to be initiated and completed by the assessing authority within a period of four years. Similarly, a period of two years has been Page 0672 fixed for initiation and completion of proceeding for re-assessment on the basis of remand passed by the appellate authority. 8. In the instant case, the moot question that falls for consideration is as to whether in absence of final order in the assessment proceeding, the amount of tax paid by the petitioner-assessee is liable to be refunded to the assessee as, according to the petitioner, the amount was paid, as an advance tax. 9. Section 42 of the Act provides for the refund of excess amount paid by the dealer towards tax or penalty. Section 24 reads as under: 42. Refunds. - The prescribed authority shall I the prescribed manner, refund any amount paid by a dealer in excess of the amount finally determined as being payable by him under this part. 9. Section 42 of the Act provides for the refund of excess amount paid by the dealer towards tax or penalty. Section 24 reads as under: 42. Refunds. - The prescribed authority shall I the prescribed manner, refund any amount paid by a dealer in excess of the amount finally determined as being payable by him under this part. The refund shall be allowed by adjustment of such excess towards the amount payable by the dealer for any other period or by cash payment or both: Provided that no claim for such refund shall be entertained unless it is made within three yeas from the date of service on the dealer of the notice of such excess. 10. The aforesaid provision clearly provides that the prescribed authority shall refund any amount paid by a dealer in excess of the amount finally determined as being payable by him under the Act. It is not the case of the petitioner that excess amount by way of tax has been deposited beyond the statutory liability of the petitioner, rather the case of the petitioner is that the amounts have been deposited for the assessment year in question by way of advance tax. The contention of the petitioner is wholly frivolous and baseless. From perusal of a copy of the return annexed by the petitioner as Annexure-7 to the reply to the counter affidavit, it transpires that according to the petitioner, the net amount of tax payable by it is only Rs. 25,65,181=64 towards sales tax and Rs. 74,44,369.86 towards central sales tax. The return shows that only this amount of tax was collected by the petitioner from the consumer and deposited the same. It is, therefore, clear that the aforesaid amount collected by the petitioner as BST and CST and deposited the amount which the petitioner wants refund on the basis of the order passed by the appellate authority. In our considered opinion, therefore, the aforesaid amount has not been paid as an advance tax, rather the said amount was collected by the petitioner from the consumers and paid to the respondents. 11. As noticed above, Section 42 speaks about the refund of such amount, which is found in excess after final determination by the assessing authority. In our considered opinion, therefore, the aforesaid amount has not been paid as an advance tax, rather the said amount was collected by the petitioner from the consumers and paid to the respondents. 11. As noticed above, Section 42 speaks about the refund of such amount, which is found in excess after final determination by the assessing authority. From perusal of the order of the appellate authority, it is clear that the assessing authority has determined the amount of tax payable by the petitioner much more than what was deposited by it. The petitioner challenged the said order of the assessing authority by filing an appeal before the appellate authority. From perusal of the memo of appeal filed by the petitioner, copy of which has been produced by the respondents, it was specific case of the petitioner that the admitted tax worth Rs. 25,78,072=00 and Rs. 74,44,369.86 as BST and CST has been deposited and no further amount is payable. 12. Having regard to the facts of the case, in our opinion, the question of refund of the amount of tax deposited by the assessee will arise only when it is found that the Page 0673 said amount of tax was illegally deposited or the amount is found in excess of the liability of the assessee. In the instant case, admittedly the amount sought to be refunded is the amount actually collected by the petitioner from the consumers and deposited it as an admitted tax. The question of refund of the said amount does not and cannot arise at all. 13. For the aforesaid reasons, we are of the considered opinion that the relief sought for by the petitioner is wholly misconceived and devoid of any substance. Consequently, the writ petitions have got no merit and are liable to be dismissed. They are dismissed. D.P. Singh, J. 14. I agree.