JUDGMENT Hon’ble Prakash Krishna, J.—The petitioner No. 1 is a society registered under the Societies Registration Act of which the petitioner No. 2 is the Secretary. The petitioner society is registered and certified by the U.P. Khadi and Village Industries Board vide registration certificate dated 16th of March, 1991 issued by the U.P. Khadi and Village Industries Board. It is manufacturing oil soap, detergent soap, detergent cake and powder. The turnover of the petitioner society was exempted under the U.P. Trade Tax Act in view of the notification issued by the State Government under Section 4 (b) of the U.P. Trade Tax Act. The relevant notification is notification No. 7037 dated 31st of January, 1985 granting exemption w.e.f. 1st of February, 1985 on the sale or purchase of the goods in which the petitioner society deals. The said notification dated 31st of March, 1985 was amended by the subsequent notification dated 1st of October, 1994 and the sale of the products of the village industries certified by the U.P. Khadi and Village Industries Board were exempt upto a prescribed turnover in an assessment year. The notification dated 1st of October, 1994 was further amended by subsequent notification No. 2454 dated 5th of October, 1995. By this notification the position ante was restored back. Meaning thereby the State Government granted total exemption without there being any prescribed limit on the turnover of the products dealt with by the village industries certified by the U.P. Khadi and Village Industries Board. 2. Indisputably, assessment orders dated 27th of March, 1997 and 26.2.2000 were passed by the Assessing Officer in respect of the assessment years 1994-1995 and 1995-96 vide Annexures-6 and 8 to the writ petition. These assessment orders have attained finality and were not subject matter of challenge. They are not subject matter of challenge by the petitioner herein also. 3. The Commissioner, Trade Tax, U.P. issued a circular dated 30th of March, 1996 whereby it has been provided that in pursuance of the decision taken by the State Government, no tax, interest or penalty shall be recoverable, if already imposed shall be remitted, from such institutions which have been certified by the Khadi Gramodyog Board in respect of sales and purchases made in between 1st of June, 1994 to 30th of September, 1995. 4. 4. On the basis of the aforesaid circular, the present writ petition has been filed by the petitioner claiming the refund of the tax amounting to Rs. 9,19,644/- for the assessment year 1994-1995 and Rs. 5,15,461/- for the assessment year 1995-1996. Reliefs both in the nature of Certiorari and Mandamus have also been claimed. 5. The sole contention of the learned counsel for the petitioner is that the petitioners are entitled for the refund of the aforestated amounts in view of the circular dated 30th of March, 1996 issued by the Commissioner, Trade Tax, U.P. Lucknow granting remission of the tax, penalty and interest. Submission is that the petitioner have deposited the tax under protest for these assessment years as they were required to have certain forms, from the department for the purposes of carrying on the business. The learned counsel for the petitioner further submits that the subsequent circular dated 4th of August, 1999 whereby the Commissioner, Trade Tax has clarified that no refund shall be granted to such assessees who have already deposited the tax, is arbitrary and liable to be quashed. Reliance has been placed upon 2005 UPTC 741, Anand Gramodyog v. CST; and M/s. Kripa Shanker Umakant Farrukhabad v. State of U.P., 1981 UPTC 1112. 6. The learned Standing Counsel, on the other hand, submits that the present writ petition is not maintainable inasmuch as there is no order granting the refund of the tax already deposited by the petitioner by the assessing authorities. Elaborating the argument, he submits that under the said circular dated 30th of March, 1996, there is no provision for refund of any tax already deposited. By the said circular, remission has been granted to such assessees who have not deposited the tax fee or penalty. The position has been clarified by the Commissioner, Trade Tax by subsequent circular dated 4th of August, 1999. 7. Considered the respective submissions of the learned counsel for the parties and perused the record. 8. So far as the factual aspect of the case is concerned, it may be noted that the assessment for the assessment year 1994-1995 was completed on 27th of March, 1997. A true copy of the said assessment order has been filed as Annexure-6 to the writ petition. There is no dispute that the assessing authority has granted exemption on the turnover of the petitioner as per the relevant notifications. A true copy of the said assessment order has been filed as Annexure-6 to the writ petition. There is no dispute that the assessing authority has granted exemption on the turnover of the petitioner as per the relevant notifications. The assessing authority has accepted the account books of the petitioner and taken into consideration the exemption notifications and the circulars issued by the department from time to time relating to the grant of exemption of the turnover of purchase and sale of the goods by the petitioner being certified by the U.P. Khadi and Village Industries Board. However, it has not passed any order of refund but provided that a sum of Rs. 8,09,517 has been deposited under protest. The order of refund/adjustment shall be passed as per direction of the higher authorities. The said order was not challenged by way of appeal or otherwise even in the present writ petition which has been filed, almost after three years. Similarly, the assessment for the assessment year 1995-96 was completed by the assessing officer on 26th of February, 2000. The assessing authority has found that the petitioner deposited the tax after realising the same from the customers and therefore, the said amount of tax cannot be refunded to the petitioner. The said order has also become final as it was not challenged by way of appeal. The assessing authority has noticed that the words “under protest” have been added in the challans subsequently by different ink and pen and concluded that since the tax was realized by the petitioners from its customers, the same is not liable to be refunded to the petitioners. The petitioners have not challenged the aforestated two assessment orders even in the present writ petition. A question, thus, arises as to whether a writ in the nature of Mandamus directing the respondents to refund the amounts as claimed by the petitioners for the assessment years 1994-95 and 1995-96 can be issued. 9. Section 29 of the U.P. Trade Tax Act deals with the refund. Sub-section (1) to Section 29 provides that the assessing authority shall, in the manner prescribed, refund to a dealer any amount of tax, fees or other dues paid in excess of amount due from him under the Act. 9. Section 29 of the U.P. Trade Tax Act deals with the refund. Sub-section (1) to Section 29 provides that the assessing authority shall, in the manner prescribed, refund to a dealer any amount of tax, fees or other dues paid in excess of amount due from him under the Act. Proviso to Section 29 (2) says that the amount found to be refundable shall first be adjusted towards the tax or any other amount outstanding against the dealer under the Act or under the Central Sales Tax Act and only balance, if any, shall be refunded. 10. The aforesaid provision came up for consideration before the Apex Court in the case of Commissioner of Sales Tax v. M/s. Hind Lamps Limited, 2008 UPTC 978. Interpreting the Section 29 (1), the Apex Court therein has held that a bare reading of the proviso to Section 29 (1) shows that the amount must have been found to be refundable and due to be refunded. The expression used is “found to be refundable”. In other words, the amount has to be found to be refundable. Applying the above ratio to the facts of the present case, it is beyond pale of any doubt that there is no order of refund in any of the assessment orders. The assessing authority has not found any amount to be refundable. There being no order of refund by the assessing authority in the relevant assessment orders, in view of Section 29 which deals with the refund, as interpreted by the Apex Court, no relief can be granted to the petitioner. 11. Then, it was urged on behalf of the petitioner that in view of the Circular dated 30th of March, 1996, the petitioner is entitled for the refund. The said Circular does not provide for refund of any tax deposited by such dealer. It provides only this much that if any tax, penalty or interest has been levied, the same shall be granted remission. By subsequent Circular dated 4th of August, 1999, the position has been further clarified by the Commissioner. The said Circular does not provide for refund of any tax deposited by such dealer. It provides only this much that if any tax, penalty or interest has been levied, the same shall be granted remission. By subsequent Circular dated 4th of August, 1999, the position has been further clarified by the Commissioner. The relevant portion of the said circular dated 4.8.1999 reads as follows : ^^&&&&&ekQh mlh /kujkf’k dh nh tkrh gS tks tek u gksA ;fn dj dh /kujkf’k uD’ks bR;kfn ds lkFk tek dj nh xbZ gS rks mls okil fd, tkus dk dksbZ vkSfpR; ugha gSA vr% ,sls dj dh /kujkf’k tks xzkgdksa ls olwy ugha dh xbZ gS vkSj ekQh ds vkns’k ds iwoZ tek dj nh xbZ gS og okilh ;ksX; ugha gksxhA** 12. The learned counsel for the petitioner submits that the said Circular is arbitrary, discriminatory and liable to be quashed as such. 13. Federal Court has pointed out in Chatturam v. CIT Bihar, AIR 1947 FC 32 that there are three stages in the imposition of tax. There is the declaration of liability, that is the part of the Statute which determines what person in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment. The ex-hypothesis has already been fixed. But assessment particularizes the exact sum which a person liable has to pay. Lastly, comes the methods of recovery if the person taxed does not voluntarily pay. The Apex Court in the case of A.V. Fernandez v. State of Kerala, AIR 1957 SC 663 has held that the three stages referred to above in the imposition of tax predicate, in the first instance a declaration of liability as the starting point. If there is a liability to tax, imposed under the terms of tax statutes, then follow the provisions in regard of assessment of such liability. If there is no liability to tax there cannot be any assessment either. It is not the case of the petitioner that it was not liable to tax under the statute, nor so found in the assessment orders in the relevant assessment years referred to above. The logical corollary is, therefore, that liability to pay the tax by the petitioner was there indisputably. This being so, no question of refund of tax does arise. The logical corollary is, therefore, that liability to pay the tax by the petitioner was there indisputably. This being so, no question of refund of tax does arise. Significantly, it is not the case of the petitioner, nor it could have been that it is not liable to pay the tax. There being the liability to pay the tax and the tax having been paid, the question of refund of tax deposited does not arise. The contention of the petitioner that since the Commissioner of Trade Tax by the circular referred to above has granted remission to other dealers who have not deposited the tax, the petitioner should be granted refund. The said argument is liable to be rejected for two reasons. Firstly, the circular does not provide for refund of any tax already deposited. A provision providing for remission of tax does not entitle any person who has deposited the tax to claim the refund. No such principle or doctrine is known to law. No provision or doctrine of law could be placed by the petitioner in support of the above plea. Secondly, in fiscal statutes, remission of tax stands altogether at a different footing than the refund of tax already deposited. Power to grant remission of tax has been conferred on the State Government by the statute. Conceptually, the remission of tax and refund of tax already deposited are two different things. In absence of any express provision entitling a person to claim refund of tax already deposited, order granting refund cannot be passed simply on the ground that in other cases, the State Government has granted remission. 14. It has been pointed out by the Apex Court in Associated Cement Co. Ltd. v. State of Bihar, JT 2004 (8) SC 155 that liability to pay tax and an actual payment of tax are conceptually different. But for exception the dealer would be required to pay tax in terms of the statutory provision. In other words, exemption principle supposes the liability. Unless there is a liability question of exemption does not arise. Liability arises in terms of the charging section and tax becomes payable at the rate as provided in the Statute. In para 39 of the report, it has been held that despite an exemption, the liability to tax remains unaffected, only the subsequent requirement of payment of tax to fulfil the liability is done away. Liability arises in terms of the charging section and tax becomes payable at the rate as provided in the Statute. In para 39 of the report, it has been held that despite an exemption, the liability to tax remains unaffected, only the subsequent requirement of payment of tax to fulfil the liability is done away. In this very case a distinction between levy and collection has been pointed out by observing that the levy and collection are not synonymous and that collection of tax is not a necessary facet of levy. By making the provision through the circular, the Commissioner has done away the collection part of the tax in the case of such dealers who have not deposited the tax but the liability to pay the tax remains. 15. The matter has been considered again by the Apex Court in the case of M/s. Peekay Rerolling Mills Pvt. Limited v. Assistant Commissioner and another, JT 2007 (4) SC 589. The Apex Court considered its earlier judgment in the case of Central Excise, Calcutta Division v. National Tobacco Co. of India Ltd., (1972) 2 SCC 560 ; Somaniya Organics (India) Ltd. v. State of U.P., JT 2001 (8) SC 319 and Collector of Central Excise, Hyderabad v. Vazir Sultan Tobacco Company Limited, Hyderabad, JT 1996 (3) SC 112, and has held as follows vide para 45 of the report : “45. In the light of the above two cases, it is evident that collection and levy are distinct and that collection is not an essential facet of levy. It is true that collection of a tax may some times be indicative of a lawful levy of tax, but in our opinion it does not logically follow that absence of collection means an absence of liability. We are also of the opinion that the reliance on the Town Municipal Committee (supra) by the Division Bench which involved an interpretation of “continued to be levied” and “to be applied to the same purposes” in Article 277 of the Constitution was misplaced. While that case did hold that in the circumstances before them ‘levy’ was intended to include ‘collection’, in our opinion the logic or ratio of that case cannot be extended so far as to say that every ‘levy’ must include collection and without such collection no levy can be said to have been made.” 16. While that case did hold that in the circumstances before them ‘levy’ was intended to include ‘collection’, in our opinion the logic or ratio of that case cannot be extended so far as to say that every ‘levy’ must include collection and without such collection no levy can be said to have been made.” 16. The learned counsel for the petitioner referred to a Division Bench decision of this Court in M/s. Kripa Shanker Umakant Farrukhabad v. State of U.P., 1981 UPTC 1112 in support of his argument. The said decision is not a case similar to the case on hand. In that case a circular was issued by the Commissioner of Sales Tax which provided where the dealer has not realized the purchase tax or where the department has not realised it from the dealers, no purchase tax shall be realised from such dealer under Section 3-AAAA. In this context the respondents were directed not to realise the purchase tax from the petitioner for the specified period on the basis of Section 3-AAAA. Question of refund of tax already deposited was not involved therein. 17. The another case relied upon by the petitioner is Anand Gramodyog Samiti v. C.S.T., 2005 UPTC 741. 18. On a meaningful reading of the decision given in the case of Anand Gramodyog Samiti (supra), it would show that the assessment order was the subject matter of challenge in appeal and second appeal and thereafter in revision. Order of refund was passed by the First Appellate Authority, which is not so here. It has been noticed herein above that there is no order of refund in the assessment orders which have attained finality. The assessing authority has found that the petitioner is not entitled for refund. Meaning thereby as on date there is no order of refund of tax already deposited by the petitioner. In absence of the order of refund, as laid down by the Apex Court in the case of C.S.T. v. M/s. Hind Lamps Ltd. (supra), refund cannot be granted under Section 29 of the Act. Besides above, the interpretation as placed by the Apex Court on Section 29 of the Act in the case of M/s. Hind Lamps (supra) was not available when the case of Anand Gramodyog Samiti was decided. Besides above, the interpretation as placed by the Apex Court on Section 29 of the Act in the case of M/s. Hind Lamps (supra) was not available when the case of Anand Gramodyog Samiti was decided. The ratio laid down in the case of Anand Gramodyog Samiti should be read and understood in the light of the subsequent judgment of the Apex Court in the case of M/s. Hind Lamps Ltd. (supra). There is another reason yet to distinguish the decision of Anand Gramodyog Samiti to the facts of the present case. In that case there was no dispute that the tax was deposited by the assessee out of its own pocket which is not so here. On the contrary, it has been found by the Assessing Authorities that the petitioner has manipulated the record by adding subsequently the words “under protest” in the Challan. The said finding of the Assessing Authority is essentially finding of fact and no attempt was made by the petitioner to challenge the same. In such circumstances, granting refund of tax to the petitioner would amount to unjust enrichment which is not permissible in law. Reference can be made to the case of Mafatlal Industries Ltd. and others v. Union of India and others, (1997) 5 SCC 536 . The Apex Court has held therein that a claim for refund of tax cannot be entertained where the tax was not deposited by the claimants from his pocket and it was passed on the customers. The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect out from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enrichment a person. It was a case under the Central Excise Act and the principle delineated therein will be applicable with equal force in other fiscal statutes such as U.P. Trade Tax Act. The above principle has been reiterated by the Apex Court in a recent judgment of State of Maharashtra and others v. Swan Stone Multiplex Cinema (P) Ltd., 2009 NTN (Vol. 41) 33. 19. The above principle has been reiterated by the Apex Court in a recent judgment of State of Maharashtra and others v. Swan Stone Multiplex Cinema (P) Ltd., 2009 NTN (Vol. 41) 33. 19. Before saying omega to the matter, for the assessment year 1994-95 as noted herein above, the assessing authority has noticed in the assessment order that the petitioner has deposited the tax “under protest” and it shall be refunded/adjusted as per directions of higher authorities. The department has now initiated the proceeding under Section 10-B of the Act which is pending. Neither it is in the assessment order nor is there any pleading in the writ petition that the tax which was deposited by the petitioner was not realized by it from its customers. It is essentially a question of fact, which may be examined, if so raised, by the authority under Section 10-B. It is left open to him to pass an appropriate order of refund/adjustment etc. in this regard, uninfluenced by this judgment, in accordance with law. 20. Alternatively, the petitioner is not entitled for the refund for simple reason as it has realised the tax as has been found by the assessing officer from the customers for the assessment year 1995-96 (Page 92 of Paper Book). In such an event if refund is granted it would amount unjust enrichment which is not permissible under law. 21. So far as the validity of the subsequent notification providing that the amount shall not be refunded to such dealer like the petitioner is concerned, the learned counsel could not substantiate the above argument with any material. There is no merit in the writ petition. Subject to above the writ petition is dismissed. But no order as to costs. ————