JUDGMENT Honble U.K. Dhaon, J.—Heard Sri Prashant Chandra, Senior Advocate, assisted by Sri Gaurav Mehrotra, learned counsel for the petitioner and Sri Jaideep Narayan Mathur, learned Additional Advocate General assisted by Sri H.P. Srivastava, learned Additional Chief Standing Counsel for the opposite parties. 2. The brief facts of the case in a nut shell are as under : The petitioner which is a Private Limited Company has alleged that its unit at UPSIDC, Industrial Area, Sandila District Hardoi, is manufacturing yeast from molasses, which is raw material for the manufacture of yeast. The molasses is purchased from various sugar factories situated in the State of U.P. The petitioner has further alleged that the State of U.P. enacted the U.P. Sheera Niyantran Adhiniyam, 1964 (hereinafter referred to as “Adhiniyam”). Sub-section (4) of Section 7-A of the Adhiniyam provides that the occupier of a sugar factory shall be liable to pay to the State Government, in the manner prescribed, administrative charges at such rate, not exceeding Rs. 5/- per quintal as the State Government from time to time notify, on the molasses sold or supplied by him. 3. The petitioner has further alleged that the U.P. Sheera Niyantran Adhiniyam, 1964 is a Special Act and the same has been enacted for the control of storage, gradation and price of molasses produced by sugar factories in Uttar Pradesh and the regulation of supply and distribution and sub-section (5) of Section 7-A provides that the occupier shall be entitled to receive from the person to whom the molasses is sold or supplied an amount equivalent to the amount of such administrative charges, in addition to the price of molasses. 4. The petitioner has further alleged that the State Government is already charging tax from the petitioner under the U.P. Sheera Niyantran Adhiniyam, 1964, which is a Special enactment for molasses only and as such under the provisions of U.P. Trade Tax Act, 1948 no tax can be realised from the petitioner as it will amount to double taxation on the sale of same product i.e. molasses by the State Government under two different enactments. 5. 5. The petitioner being aggrieved by the Notification No. ST-II-5784/X-10(1)-80-U.P. Act 15/48-Order-81 dated 7.9.1981 which has been issued in exercise of the powers under clause (d) of sub-section (1) of Section 3-A of the U.P. Sales Tax Act, 1948 (U.P. Act No. XV of 1948) read with Section 21 of the U.P. General Clauses Act, 1904 (U.P. Act No.1 of 1904), and in supersession of all previous notifications issued from time to time under sub-section (1) of Section 3-A of the Act as it stood before its amendment by the U.P. Sales Tax (Amendment and Validation) Ordinance, 1981 (U.P. Ordinance No.12 of 1981), by which it has been provided that, with effect from September 7, 1981, the turnover in respect of the goods specified in column 2 of the Schedule to the notification shall be liable to tax at the point of sale specified in column 3 of the said Schedule at the rate specified against each in column 4 thereof has filed the instant writ petition. 6. The learned counsel for the petitioner submitted that the levy of administrative charges on the sale of molasses is a tax and as the petitioner is paying administrative charges on the purchase of the molasses from the Sugar Mills, the opposite parties cannot realise the Trade Tax under the provisions of the U.P. Trade Tax Act, 1948 on the same purchase of molasses. He further submitted that Hon’ble the Supreme Court in the case of Commissioner of Central Excise, Meerut v. Kisan Sahkari Chinni Mills Ltd., (2001) 6 SCC 697 has held that administrative charges levied by the State of U.P. under the provisions of the U.P. Sheera Niyantran Adhiniyam, 1964, on the sale and purchase of molasses is a tax. Learned counsel for the petitioner has also relied upon the decision of Hon’ble the Supreme Court in the case of Commissioner of Central Excise, Lucknow, U.P. v. Chhata Sugar Co. Ltd., (2004) 3 SCC 466 . He further submitted that Hon’ble Supreme Court in the case of Gupta Modern Breweries v. State of J.&K. and others, (2007) 6 SCC 317 has held that the imposition of administrative charges is a tax and not a fee. 7. Ltd., (2004) 3 SCC 466 . He further submitted that Hon’ble Supreme Court in the case of Gupta Modern Breweries v. State of J.&K. and others, (2007) 6 SCC 317 has held that the imposition of administrative charges is a tax and not a fee. 7. He further submitted that the Special enactment will prevail over general enactment and as the U.P. Trade Tax Act is a general Act relevant to the levy of tax on sale and purchase of goods in the State of U.P. it will not apply to the petitioner in respect to the purchase of molasses from the Sugar Factories as the Sugar Factory recovers administrative charges from the petitioner and passes it on to the Government under the Special Enactment i.e. U.P. Act No. XXIV of 1964. 8. Learned counsel for the petitioner has relied upon the decision of Hon’ble the Supreme Court in the cases of Belsund Sugar Co.Ltd. v. State of Bihar and others, (1999) 9 SCC 620 ; Gobind Sugar Mills Ltd. v. State of Bihar and others, (1999) 7 SCC 76 and Beg Raj Singh v. State of U.P. and others, (2003) 1 SCC 726 . He further submitted that in the case of D.S.M Group of Industries and another v. Chairman, Trade Tax Tribunal, U.P. and others, 2002 U.P.T.C. 955, the Hon’ble Single Judge of this Court has held that molasses is not taxable under the U.P. Trade Tax Act, 1948 and that the special Act will prevail over general Act and the Special Leave Petition (C) No. 8845 of 2002, State of U.P. and others v. D.S.M. Group of Industries and another against the said judgment was dismissed by Hon’ble the Supreme Court by the judgment and order dated 10.3.2003. 9. Sri Prashant Chandra, further submitted that the petitioner is entitled for the refund of the Trade Tax which was collected by the State of U.P. through the Sugar Mills from the petitioner on the purchase of molasses in view of the law declared by Hon’ble the Supreme Court in the case of Gobind Sugar Mills Ltd. v. State of Bihar and others (supra) and M/s. D.S.M. Group of Industries and another v. Chairman, Trade Tax Tribunal, U.P. and others. 10. 10. The learned counsel for the petitioner has also relied upon the decision of Hon’ble the Supreme Court in the case of Moti Laminates (P) Ltd. v. Union of India, 2002 (144) E.L.T. 3 (SC); Salonah Tea Co. Ltd. and others v. Superintendent of Taxes, Nowgong and others, (1988) 1 SCC 401 and the judgment of the Bombay High Court in the case of Arochem Industries v. Union of India, 1991 (56) E.L.T. 505 (Bom.). 11. Sri J.N. Mathur, learned Additional Advocate General appearing on behalf of the opposite parties submitted that the U.P. Sheera Niyantran Adhiniyam, 1964, is a Special enactment for the control of storage gradation and price of molasses produced by Sugar Factories in Uttar Pradesh and the regulation of supply and distribution thereof. He fairly conceded that in view of the law declared by Hon’ble the Supreme Court in the cases of Commissioner of Central Excise, Meerut v. Kisan Sahkari Chinni Mills Ltd. (supra) and Commissioner of Central Excise, Lucknow, U.P. v. Chhata Sugar Co. Ltd. (supra) administrative charges is a tax and not fee. He also fairly conceded that in view of the law declared by Hon’ble the Supreme Court in the cases of Gobind Sugar Mills Ltd. v. State of Bihar and others (supra) and Belsund Sugar Co. Ltd. v. State of Bihar and others (supra) Special enactment will prevail over general enactment. He has also conceded that the Special Leave Petition filed against the judgment and order passed in the case of M/s. D.S.M. Group of Industries and another (supra) has been dismissed by Hon’ble the Supreme Court. He further submitted that the petitioner is not entitled for the refund of the trade tax which he has paid to the Sugar Mills while purchasing molasses for the manufacture of yeast. He further submitted that the petitioner is paying the trade tax without protest and they never raised any grievance before the departmental authorities with respect to the relief claimed in the writ petition. He further submitted that the petitioner has not stated in the writ petition that he has not passed on the burden of tax paid by him to the consumer of the yeast and as such he is not entitled for refund on the principles of unjust enrichment. He further submitted that the petitioner has not stated in the writ petition that he has not passed on the burden of tax paid by him to the consumer of the yeast and as such he is not entitled for refund on the principles of unjust enrichment. He has relied upon the decisions of Hon’ble the Supreme Court in the cases of Mafatlal Industries Ltd. and others v. Union of India and others, (1997) 5 SCC 536 ; U.P. Pollution Control Board and others v. Kanoria Industrial Ltd. and another, (2001) 2 SCC 549 and Somaiya Organics (India) Ltd. and another v. State of U.P. and another, (2001) 5 SCC 519 . 12. We have considered the submissions made by the learned counsel for the parties and gone through the record. 13. The petitioner which is a Private Limited Company has alleged that its unit at UPSIDC, Industrial Area, Sandila District Hardoi, is manufacturing yeast from molasses. It is admitted case of the parties that the petitioner is purchasing molasses for the manufacture of yeast from various Sugar Factories situated in the State of U.P. It is also admitted case of the parties that the State of U.P. enacted the U.P. Sheera Niyantran Adhiniyam, 1964 (U.P. Act No. XXIV of 1964) for the control of storage, gradation of price of molasses produced by the Sugar Factories in Uttar Pradesh and the regulation of supply and distribution thereof. Section 7-A of U.P. Act No. XXIV of 1964 is as follows : “7-A. Application for molasses.—(1) Any person who requires molasses for his distillery or for any purpose of industrial development may apply in the prescribed manner to the Controller specifying the purpose for which it is required. (2) On receipt of an application under sub-section (1) and after making such inquiries in the matter as he may think fit, the Controller may make an order under Section 8. (3) In disposing of an application under sub-section (1) the Controller shall consider— (a) the general availability of molasses ; (b) various requirements of molasses ; (c) the better utilization to which molasses may be put in the public interest. (3) In disposing of an application under sub-section (1) the Controller shall consider— (a) the general availability of molasses ; (b) various requirements of molasses ; (c) the better utilization to which molasses may be put in the public interest. (d) the extent to which the requirements of the applicant are genuine; (e) reasonable likelihood or otherwise of the molasses that may be obtained by the applicant being diverted to purposes other than those specified in the application and where the application is rejected in whole or in part, he shall record reasons therefor. (4) The occupier of a sugar factory shall be liable to pay to the State Government in the manner prescribed, administrative charges at such rate, not exceeding five rupees per quintal as the State Government from time to time notify, on the molasses sold or supplied by him. (5) The occupier shall be entitled to receive from the person to whom the molasses is sold or supplied an amount equivalent to the amount of such administrative charges, in addition to the price of molasses.” 14. The petitioner has alleged that the State of U.P. is levying and collecting administrative charges which is tax on the molasses through the Sugar Factories under the U.P. Sheera Niyantran Adhiniyam, 1964 and also collecting trade tax under the U.P. Trade Tax Act, thus subjecting the same purchase of molasses by the petitioner to tax twice under two different Acts. The petitioner contended that the U.P. Sheera Niyantran Adhiniyam, 1964, being a Special enactment overrides the provisions of the Trade Tax Act with reference to levy of administrative charges on molasses as the latter is a general Act providing for collection of taxes on sale and purchase of goods. 15. Sri J.N. Mathur, learned Additional Advocate General has fairly conceded that administrative charges collected by the Sugar Mills on the purchase of the molasses by the petitioner is a tax. He has also conceded that the U.P. Sheera Niyantran Adhiniyam, 1964, being a Special enactment will override the provisions of the U.P. Trade Tax Act, which is a general Act providing for collection of taxes on sale and purchase of goods. He has also conceded that the U.P. Sheera Niyantran Adhiniyam, 1964, being a Special enactment will override the provisions of the U.P. Trade Tax Act, which is a general Act providing for collection of taxes on sale and purchase of goods. Sri J.N. Mathur has also conceded that in the case of M/s. D.S.M. Group of Industries and another v. Chairman, Trade Tax Tribunal, U.P. and others (supra), Hon’ble Single Judge of this Court has held that molasses is not taxable under the U.P. Trade Tax Act, 1948 and the Special Leave Petition preferred by the State of U.P. against the said judgment was dismissed by Hon’ble the Supreme Court on 10.3.2003. 16. Now the only question for determination in the writ petition is regarding the refund of the trade tax which the opposite parties have realised from the petitioner through Sugar Mills on the purchase of molasses. 17. It is admitted case of the parties that the State of U.P. is realising administrative charges on the purchase of the molasses by the petitioner from various Sugar Mills of the State of Uttar Pradesh. It is also admitted case of the parties that in addition to the administrative charges, the petitioner has also paid trade tax on the same purchase of molasses from the Sugar Mills. It is also admitted case of the parties that the State of U.P. has levied and collected administrative charges on the molasses purchased by the petitioner from the Sugar Mills situated in the State and also realised trade tax under the U.P. Trade Tax Act on the same purchase of molasses by the petitioner. In view of the law declared by Hon’ble Supreme Court in the case of Gobind Sugar Mills Ltd. v. State of Bihar and others (supra), it was not proper for the opposite parties to realise trade tax from the petitioner on the purchase of molasses as they were realising and collecting administrative charges which is tax on the same purchase of molasses. In the case of M/s. D.S.M. Group of Industries and another v. Chairman, Trade Tax Tribunal, U.P. and others (supra), the Hon’ble Single Judge of this Court on the basis of the various pronouncement of Hon’ble the Supreme Court held that molasses is not taxable under the U.P. Trade Tax Act, 1948. In the case of M/s. D.S.M. Group of Industries and another v. Chairman, Trade Tax Tribunal, U.P. and others (supra), the Hon’ble Single Judge of this Court on the basis of the various pronouncement of Hon’ble the Supreme Court held that molasses is not taxable under the U.P. Trade Tax Act, 1948. It was also held that the U.P. Sheera Niyantran Adhiniyam, 1964, is a Special Act, which will prevail over general Act of the State of U.P. which operate in the same field. It is also admitted case of the parties that the Special Leave Petition (C) No. 8845 of 2002 preferred by the State of U.P. against the judgment and order dated 6.2.2002 in the case of M/s. D.S.M. Group of Industries and another v. Chairman, Trade Tax Tribunal, U.P. and others (supra), was dismissed by Hon’ble the Supreme Court on 10.3.2003. The instant writ petition was filed by the petitioner in July 2003. Once it has been held that molasses is not taxable under the U.P. Trade Tax Act, 1948 as the U.P. Sheera Niyantran Adhiniyam, 1964, which is a Special Act will prevail over U.P. Trade Tax Act, 1948, the trade tax levied and collected by the opposite parties from the petitioner on the purchase of molasses through Sugar Mills was illegal and unjust. The Trade Tax paid by the petitioner on the purchase of molasses during the pendency of the writ petition was under protest as the realisation of the tax was against the law declared by Hon’ble Supreme Court. 18. Article 265 of the Constitution of India forbids State from making unlawful levy or collecting tax unlawfully. The Constitution Bench of Hon’ble the Supreme Court in the case of Mafatlal Industries Ltd. and others v. Union of India and others, has held in para 123 as under : “A point has been made that the manufacturer has passed on the burden of the illegal levy to his customers by raising his price of the goods. But that is no reason why the guarantee given by the Constitution should not be enforced. The manufacturer may have been compelled to raise the price because of the imposition of an illegal levy. But that is no reason to dilute the mandate contained in Article 265 of the Constitution. Article 265 forbids the State from making an unlawful levy or collecting taxes unlawfully. The bar is absolute. The manufacturer may have been compelled to raise the price because of the imposition of an illegal levy. But that is no reason to dilute the mandate contained in Article 265 of the Constitution. Article 265 forbids the State from making an unlawful levy or collecting taxes unlawfully. The bar is absolute. It protects the citizens from any unlawful exaction of tax. So long as Article 265 is there, the State cannot be permitted to levy any tax without authority of law and if any tax has been collected unlawfully that must be restored to the person from whom it was collected. If the tax has been collected from any person unlawfully, is the taxpayer’s money which is in unlawful possession of the State. The State has a constitutional obligation to give back the money to the taxpayer. An act done in violation of constitutional mandate is void and no right flows out of that void act to the State. The State is in unlawful possession of the tax payer’s property. The State cannot retain it on any equitable ground nor can it give it to any other person out of any supposed equitable consideration. The constitutional mandate cannot be ignored on the pretext of any rule of equity or on the ground if what is perceived as substantive justice. Every word of the Constitution has to be treated as sacrosanct and respected and obeyed by the State and the legislature and enforced by the Court.” 19. The Court has a duty to uphold the Constitution in letter and spirit. If the Court comes to the conclusion that the levy of tax is unlawful the Court will direct the Government to return the tax. After the decision of this Court in the case of M/s. D.S.M. Group of Industries and another v. Chairman, Trade Tax Tribunal, U.P. and others affirmed by Hon’ble the Supreme Court on 10.3.2003, it cannot be said that the State was unaware that molasses is not taxable under the U.P. Trade Tax Act. After the decision of this Court in the case of M/s. D.S.M. Group of Industries and another v. Chairman, Trade Tax Tribunal, U.P. and others affirmed by Hon’ble the Supreme Court on 10.3.2003, it cannot be said that the State was unaware that molasses is not taxable under the U.P. Trade Tax Act. The action of the opposite parties in collecting and realising the trade tax from the petitioner on the purchase of molasses from various Sugar Mills in the State of U.P. subsequent to the dismissal of Special Leave Petition (C) No. 8845 of 2002, State of U.P. and others v. D.S.M. Group of Industries and another on 10.3.2003 by Hon’ble the Supreme Court is arbitrary, illegal and unjust. 20. We are of the view that the petitioner is entitled for the refund of the trade tax which was illegally realised and collected by the opposite parties on the purchase of the molasses through Sugar Mills of the State of U.P. subsequent to 10.3.2003. 21. In the result, the writ petition succeeds and is partly allowed. The opposite parties on the basis of the Notification dated 7.9.1981 issued under the provisions of the U.P. Sales Tax Act, 1948 now U.P. Trade Tax Act read with Section 21 of the U.P. General Clauses Act, 1904 shall not realise any trade tax from the petitioner on the purchase of molasses. 22. The opposite parties shall refund the amount of trade tax which was realised by them through the Sugar Mills subsequent to 10.3.2003. The petitioners shall submit the details of the tax which the opposite parties have realised from them subsequent to 10.3.2003 within one month from today and the opposite parties shall refund the amount of trade tax to the petitioners within two months thereafter. 23. Under the circumstance, there shall be no order as to costs. ————