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Rajasthan High Court · body

2015 DIGILAW 1062 (RAJ)

Interglobe Aviation Limited v. State of Rajasthan

2015-05-13

MOHAMMAD RAFIQ

body2015
ORDER M/s Interglobe Aviation Limited through its Airport Manager (for short, ‘the petitioner-company’), has yet again approached this Court, by means of these writ petitions, inter-alia, with prayer that the order dated 20.09.2013 passed by respondent no.3 – Assistant Commercial Taxes Officer, Commercial Taxes Department, Circle-C, Ward-II, Jaipur (for short, ‘the assessing officer’), be quashed and set aside. Further prayer is made for issuance of a mandamus directing the respondents to return along-with interest the amount of Value Added Tax (for short, 'the VAT') of Rs.85,20,747/-for the period from 06.01.2007 to 31.03.2007 (Writ Petition No.21473/2013), Rs.6,11,37,585/-for the year 2007-08 (Writ Petition No.21474/2013) and Rs.4,12,30,035/-for the year 2008-09 (Writ Petition 21475/2013), (for short, referred to as 'first, second and third phase', respectively. This amount of VAT was wrongly collected by the Indian Oil Corporation Limited Jaipur from the petitioner-company, whereas, in view of exemption notifications issued by the State Government, petitioner-company having established a HUB in the State, was fully exempt from such tax during first and second phase and was liable to pay the tax only at the rate of 4% during third phase but was wrongly charged at the rate of 28%. 2. Petitioner-company is engaged in business of civil aviation. It is a registered dealer with the respondent under the Rajasthan Value Aided Tax Act, having its principal place of business in Rajasthan at Jaipur Airport, Sanganer, Jaipur. Its registration certificate includes; Aerated Water, Cookies, Cashew Nuts, Juices, Sandwiches, Health Bar, Confectionery, Tea and Coffee for the sale. In order to boost tourism and industrial activities in the State and attract investment, the respondent State of Rajasthan in exercise of powers under Sections 4 and 8 of the Rajasthan VAT Act, issued a notification dated 31.03.2006, which provided exemption from the VAT on sale of ATF to any airline establishing a HUB in the State, which was valid till one year from the date of commencement. Case of the petitioner-company is that it set up a HUB at Sanganer Airport, Jaipur with the intention of availing benefit of said notification. It started using the said airport for parking aircrafts at night, with the result that its flights started originating from Jaipur. It also established its own maintenance and engineering team for repair and maintenance of aircraft stationed at Jaipur. Besides, pilots of the petitioner-company are based at Airport, Jaipur. It started using the said airport for parking aircrafts at night, with the result that its flights started originating from Jaipur. It also established its own maintenance and engineering team for repair and maintenance of aircraft stationed at Jaipur. Besides, pilots of the petitioner-company are based at Airport, Jaipur. Reliance is placed on the certificate issued by the Ministry of Civil Aviation dated 12.01.2009, certifying the fact that the petitioner-company started HUB at Jaipur, connecting Jaipur with Ahmedabad, Hyderabad, Kolkata, Banglore, Mumbai, Chennai and Guwahati. It was commended that in view of the above, petitioner-company should be given exemption of VAT on purchase of ATF as per Government of Rajasthan notification dated 25.02.2008. The Government of Rajasthan later issued another notification under sub-section (3) of Section 8 of the Rajasthan VAT Act, 2003 on 25.02.2008 whereby the sale of ATF was wholly exempt from levy of tax to the extent the rate of tax exceeding 4%, so long the same was made to the airlines having HUB at Rajasthan. According to the petitioner-company, it regularly purchased ATF from Indian Oil Corporation Limited at Sanganer Airport, Jaipur. The Airport Authority of India, Jaipur Airport, Jaipur, vide certificate dated 12.09.2008, has certified that the petitioner-company has been allotted two parking slots for their aircrafts at Jaipur airport. It had been maintaining two nights parking bays at Jaipur Airport during the last winter season. Currently, it was utilizing one parking slot for night parking. It has one base flight originating from Jaipur airport in the morning and that it has its own engineering department at Jaipur. 3. According to the petitioner-company, the sale of ATF was wholly exempt during the period from 06.01.2007 to 05.01.2008, and sale of ATF was liable to tax at the rate of 4% only during the period from 25.02.2008 to 18.01.2009, in view of the notification dated 25.02.2008. Although, of course, sale of ATF to petitioner-company during the intervening period from 06.01.2008 to 24.02.2008, was subject to levy of VAT at the rate of 28% per annum. Although, of course, sale of ATF to petitioner-company during the intervening period from 06.01.2008 to 24.02.2008, was subject to levy of VAT at the rate of 28% per annum. The petitioner-company purchased ATF during the period from 06.01.2007 to 31.03.2007 from IOCL valued at Rs.3,04,31,241/- (Rupees three crore four lacs thirty one thousand two hundred forty one), and the IOCL received VAT at the rate of 28% from the petitioner-company amounting to Rs.85,20,747/- (Rupees eighty five lacs twenty thousand seven hundred forth seven), whereas during this period no VAT should have been charged as ATF was exempt. Copy of the certificate dated 18.08.2009 given by the IOCL, Jaipur, regarding sale of ATF to the petitioner-company and the amount of VAT charged thereupon, has been placed on record. Similarly, the petitioner-company, during the period from 01.04.2007 to 05.01.2008 purchased the ATF valued at Rs.19,23,18,639/-(Rupees nineteen crores twenty three lacs eighteen thousand six hundred thirty nine) and IOCL charged VAT at the rate of 28% amounting to Rs.5,38,49,219/- (Rupees five crore thirty eight lacs forty nine thousand two hundred nineteen). Thereafter, during the period from 25.02.2008 to 31.03.2008, the IOCL sold ATF to the petitioner-company valued at Rs.3,03,68,189/- (Rupees three crore three lacs sixty eight thousand one hundred eighty nine) and charged VAT at the rate of 28% amounting to Rs.85,03,094/- (Rupees eighty five lacs three thousand ninety four). A copy of the certificate dated 31.08.2009 issued by the IOCL, Jaipur to this effect, has been placed on record. During the period from 01.04.2008 to 18.01.2009, the petitioner-company purchased ATF from IOCL valued at Rs.17,17,91,817/-(Rupees seventeen crores seventeen lacs ninety one thousand eight hundred and seventeen) and IOCL recovered VAT at the rate of 28% amounting to Rs.4,81,01,708/-(Rupees four crore eighty one lac one thousand seven hundred and eight). A copy of the certificate dated 18.08.2009 issued by the IOCL is placed on record. 4. It is not in dispute that the tax collected by the IOCL, Jaipur, on the sale of ATF by it to the petitioner-company, has been deposited with the Commercial Taxes Department of the State. The petitioner-company thereafter submitted applications for refund of unduly collected tax. When refund applications were dismissed vide order dated 24.02.2010, petitioner-company approached this court by filing three separate writ petitions, whereunder it assailed three different orders dated 24.02.2010 passed by the same assessing officer (respondent no.3 herein). The petitioner-company thereafter submitted applications for refund of unduly collected tax. When refund applications were dismissed vide order dated 24.02.2010, petitioner-company approached this court by filing three separate writ petitions, whereunder it assailed three different orders dated 24.02.2010 passed by the same assessing officer (respondent no.3 herein). The writ petitions were opposed by the respondents both on the ground of availability of alternative remedy as also on merits. This court on consideration of the arguments and precedents of the Supreme Court cited at the bar, rejected the objection of alternative remedy, and allowed the writ petitions. 5. While quashing the order dated 24.02.2010, this court remanded the matter to the assessing officer to decide the claim of the petitioner-company for refund afresh, within six months after making appropriate enquiry in the light of discussions made in the judgment. The assessing officer has now again rejected the claim of refund on an entirely new ground, which was not the foundation of the earlier rejection order. Relying on Section 53(5) of the VAT Act, 2003 and on the judgment of the Supreme Court in Entry Tax Officer Vs. Chandanmal Champalal and Co. - (1994) 4 SCC 463 , he has held that although recovery of VAT by IOCL from the petitioner-company was unauthorized but rejected the claim, holding that grant of refund to the petitioner-company would amount to its unjust enrichment as it has failed to prove that it has borne and suffered the incidence of tax and has not passed on burden thereof on the consumers. 6. Shri Ramji Srinivasan, learned senior counsel appearing for the petitioner-company, has submitted that when petitioner originally filed application before the assessing officer under Section 83(1) of the Rajasthan VAT Act for refund of the excess tax collected during all the above referred to three phases, it specifically asserted in para 4 of the application that it has borne and suffered the incidence of tax and the burden of the same has not been passed on to the third party. This was specifically taken note of by the assessing officer in the very first para of earlier order rejecting the refund claim. This was specifically taken note of by the assessing officer in the very first para of earlier order rejecting the refund claim. The refund application was rejected on various grounds such as non-registration of ATF and HUB, failure to claim refund in VAT 10 returns etc., but the assessing officer chose not to make the alleged unjust enrichment of the petitioner-company, as the basis for refusing the prayer. That would imply that the assertion of the petitioner-company that it has borne the incidence of tax and same has not been passed on to the third party, was accepted by him. The petitioner-company filed three separate writ petitions against the earlier orders dated 26.02.2010 rejecting their refund claim. In para 12 of the each of the writ petitions, it was categorically pleaded that extra amount of VAT has been borne and suffered by the petitioner-company and has not been recovered from the third party. Respondents in their counter-affidavit did not specifically deny this fact, aware as they were that the burden of tax has not been passed on to the third party. In fact, the respondents in their counter affidavit have clubbed their response to paras 7 to 12 together wherein although they have denied the factum regarding HUB and application of exemption notification, they consciously did not deny the averment of the petitioner-company with regard to unjust enrichment. 7. Learned senior counsel has in this regard, relied on judgment of the Supreme Court in Gian Chand and Brothers and Another Vs. Rattan Lal – (2013) 2 SCC 606 , wherein it was held that it was obligatory on the part of the defendant to specifically deal with each allegation in the plaint and it shall not be sufficient for the defendant to deny generally the allegations but must be specific with each denial. As per Order 8 Rule 5 of the CPC, every allegation of fact in the plaint, if not denied specifically or by necessary implication, shall be taken to be admitted against them. Reliance in this connection is also placed on judgment of the Supreme Court in BSNL and Others Vs. Abhishek Shukla and Others – (2009) 5 SCC 368 to argue that if the respondents do not specifically deny any averment in the writ petition, the same is deemed to have been accepted by them. 8. Reliance in this connection is also placed on judgment of the Supreme Court in BSNL and Others Vs. Abhishek Shukla and Others – (2009) 5 SCC 368 to argue that if the respondents do not specifically deny any averment in the writ petition, the same is deemed to have been accepted by them. 8. Learned senior counsel Shri Ramji Srinivasan would argue that the said reply-affidavit has been filed by none other than the CTO, who has also passed the impugned orders in the present writ petitions. Even during the course of argument in the earlier writ petitions, the respondents never agitated the issue of unjust enrichment before this court. This court categorically held the petitioner entitled to VAT exemption and passed the order of limited remand only for the purpose of enquiry as to the date of establishment of HUB and for what period the petitioner-company was entitled to interest. In fact, this court in its earlier order, noticed no factual dispute and castigated the respondents by holding that respondents cannot be permitted to give additional reasons in support of their rejection order. In pursuance of the directions made by this court, petitioner-company appeared before the respondents and submitted various documents in support of its contention that the HUB was established with effect from 06.01.2007. The petitioner-company was able to satisfy all the queries raised by the respondents, and also filed its written submissions on the above-mentioned two issues. The assessing officer, for the first time, with mala-fide intent, issued another notice regarding unjust enrichment in its desperate attempt to somehow deny the relief of refund of tax to the petitioner-company, which is nothing but an attempt to overreach the order of limited remand. The petitioner-company submitted its response to the above said notice on 23.08.2013 and objected to the jurisdiction of the respondent to issue such a notice, which was clearly beyond the mandate and scope of remand order passed by this court. Even then, the assessing officer has rejected the application for grant of refund. Relying on judgment of the Supreme Court in K.P. Dwivedi Vs. Even then, the assessing officer has rejected the application for grant of refund. Relying on judgment of the Supreme Court in K.P. Dwivedi Vs. State of U.P. – (2003) 12 SCC 572, learned senior counsel argued that where the matter is remanded to an authority to determine a specific issue, re-determination is restricted to the issue specifically remanded by the superior court and all other issues, which have been decided earlier, shall not be allowed to be re-agitated. 6. Learned senior counsel also relied on judgments of the Supreme Court in Devilal Modi Vs. Sales Tax Officer – AIR 1965 SC 1150 and Shankara Co-operative Housing Society Limited Vs. M. Prabhakar and Others – (2011) 5 SCC 607 , and argued that judgments pronounced by the Court are binding and must be regarded as final between the parties in respect of matters covered by them and that no one should be made to face same kind of litigation twice over. In these judgments, the Supreme Court held that rule of constructive res judicata, that if a plea could have been taken by a party in an earlier proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding, which is based on the same cause of action, is also applicable to writ proceedings. 7. Learned senior counsel for petitioner-company would also submit once the High Court has passed an order, which has not been challenged and has attained finality, the adjudicating authority cannot be permitted to circumvent the order passed by the High Court. To buttress his this submission, learned senior counsel has relied on judgment of the Supreme Court in RBF Rig Corporation Vs. Commissioner of Customs – (2011) 3 SCC 573 . It is argued that the Supreme Court in Eastern Coalfields Ltd. Vs. Tetulia Coke Plant Pvt. Ltd. – (2011) 14 SCC 624 , has held that if the plea of unjust enrichment has not been taken earlier by the respondents, they cannot be permitted to raise the said plea subsequently. 8. Learned Senior Counsel submitted that Section 53(5) of the Rajasthan VAT Act has two components and is in two parts. Tetulia Coke Plant Pvt. Ltd. – (2011) 14 SCC 624 , has held that if the plea of unjust enrichment has not been taken earlier by the respondents, they cannot be permitted to raise the said plea subsequently. 8. Learned Senior Counsel submitted that Section 53(5) of the Rajasthan VAT Act has two components and is in two parts. While the first part provides that only the dealer or the person, who has actually suffered the incidence of tax or has paid the amount, can claim a refund and the burden of proving the incidence of tax so suffered or the amount so paid shall be on the dealer or the person claiming the refund, the second part also entitles a dealer or person to claim refund if he has paid the amount and has proved the payment of such amount, which is evident from the word “or” used between “who has actually suffered the incidence of tax” and “has paid the amount”. Here the word 'or' is disjunctive, therefore, even if the petitioner-company has proved that it has actually paid the amount which it was not liable to pay, that would suffice to prove its claim of refund. 9. E-converso, Shri R.B. Mathur, learned counsel for the respondents, again raised the objection of alternative remedy by arguing that the impugned order is open to challenge in appeal before the Deputy Commissioner under Section 82 of the Rajasthan VAT Act, and then further appeal would lie to the Rajasthan Tax Board under Section 83 of the Rajasthan VAT Act. There are no grounds available with the petitioner-company to byepass the alternative remedy of two successive appeals. Relying on judgment of the Supreme Court in Titaghur Paper Mills Company Ltd. Vs. State of Odisa – AIR 1983 SC 603 , it was argued that if in the scheme of the Act there is hierarchy of Authorities before whom the petitioner can get adequate redress against the wrongful acts complained of, and the Act provides for a complete machinery to challenge an order of assessment, then such orders can be challenged only by the mode provided by the Act and not by a petition under Article 226 of the Constitution. 10. Learned counsel for the respondents also relied on judgment of the Supreme Court in Whirlpool Corporation Vs. 10. Learned counsel for the respondents also relied on judgment of the Supreme Court in Whirlpool Corporation Vs. Registrar of Trademarks – (1998) 8 SCC 1 , wherein the Supreme Court held that under Article 226 of the Constitution, the High Court having regards to the facts of the case, has discretion to entertain or not to entertain a writ petition. The High Court has imposed upon itself certain restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction, but the alternative remedy has been consistently held by the Supreme Court not to operate as a Bar in at least four contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principal of natural justice or where the order or proceedings are wholly without jurisdiction or where the vires of an Act is challenged. 11. Shri R.B. Mathur, learned counsel for the respondents, also relied on division bench judgment of this court in Reckitt Benckiser India Pvt. Ltd. Vs. State of Rajasthan and Others – Special Appeal (Writ) NO.239/2010, and another division bench judgment of this court in ABB Limited Vs. State of Rajasthan – Special Appeal (Writ) No.430/2011, and argued that invocation of extraordinary jurisdiction under Article 226 of the Constitution in the matters of recovery of taxes, cess, fees etc. should be deprecated, as stay granted in such matters may impede the execution of projects of public importance and casts serious adverse impact on the financial health of the State. The petitioner-company does not fit in the above mentioned parameters as laid down by the Supreme Court. 12. On merits of the case, Shri R.B. Mathur, learned counsel for the respondents, argued that the assessee challenged the earlier order of rejection of claim dated 24.02.2010 and this Court vide order dated 28.02.2013 passed in Writ Petition No.7128-30 of 2010, while setting aside the order dated 24.02.2010, remanded the matter to the assessing officer to decide the refund application afresh within six months after making appropriate enquiry. It has been categorically mentioned by this court that the refund applications were rejected on the ground that assessee is not registered as dealer under the specified category to claim such exemption. It has been categorically mentioned by this court that the refund applications were rejected on the ground that assessee is not registered as dealer under the specified category to claim such exemption. Accordingly, as per direction of this court, the assessing officer considered the application of the assessee afresh and after providing fair opportunity to the assessee and going through the documents provided, vide order dated 20.09.2013, held that the assessee is not entitled to refund as the burden of the disputed tax so paid to IOCL, has been further passed on and collected from the consumers and indisputably, the assessee has not suffered any loss. The assessing authority has, after thorough enquiry, rejected the claim of refund upon arriving at satisfaction that the petitioner-company has already passed over the amount so claimed to the ultimate consumer and any refund would amount to unjust enrichment. Contention that the said plea was not taken in earlier proceedings, therefore cannot be raised now, is liable to be rejected because this court remanded the matter to the assessing authority to decide the entire matter afresh presuming only the fact that the assessee herein was having registered HUB and no other direction was given specifically and nothing on merits has been purported in the earlier judgment of this court. 13. Learned counsel for the respondent referred to clause 5.2 of the Indigo Condition of Carriage, which is under the caption “Taxes, Duties, Fees, Charges and Surcharges”, and argued that according thereto, the amount of any applicable taxes, duties, fees, charges or surcharges are reflected in the tickets of the consumers, which is accordingly priced. The airline fuel charge will vary depending on the sector date of booking and the actual date of travel. In this view of the matter, the petitioner assessee failed to show and prove that it has not passed the burden on the consumers and suffered the tax itself. In this connection, learned counsel for the respondents has referred to Section 53 of the Rajasthan VAT Act and argued that only dealer or the person who has actually suffered the incidence of tax or has paid the amount, can claim a refund and the burden of proving the incidence of tax so suffered or the amount so paid, shall be on the dealer or the person claiming the refund. 14. 14. Learned counsel Shri R.B. Mathur, in order to justify the rejection of claim of refund on the ground of unjust enrichment of the petitioner-company, has relied on judgments of the Supreme Court in Mafatlal Industries Ltd. Vs. Union of India – (1997) 5 SCC 536 , State of M.P. Vs. Vyankatal – AIR 1985 SC 901 and judgment dated 07.08.2014 in Deccan Cement Limited Vs. Assistant Director Mines & Geology – Civil Appeal No.5484/2002, and the Division Bench judgment of the Orissa High Court in Tata Sponge Iron Limited Vs. State of Odisa – (2009) 23 VST 371 (Odisa). 15. In response to a pointed query by the court as to why the assessing officer in the impugned order has not made the enquiry about the date on which the HUB actually commenced, learned counsel for the respondents submitted that once the assessing officer was satisfied that the petitioner-company has failed to discharge its burden of proving that it suffered the actual incidence of tax, the assessing officer was not required to go into that question because in his opinion that question was rendered secondary and unnecessary to be examined, primary question being that of the burden of proof as to the sufferance of the incidence of tax with reference to Section 53(5) of the Rajasthan VAT Act. 16. I have given my anxious consideration to the rival submissions, and respectfully studied the cited judgments and carefully scrutinized the material on record. 17. Dealing, at the very outset, with the argument regarding objection of availability of alternative remedy, it must be observed that this objection was already raised in the earlier writ petitions and was considered and rejected. Various judgments, which have been relied upon by Shri R.B. Mathur, learned counsel for the respondents, were relied by him at the time of arguments in earlier writ petitions too. All those precedents were thoroughly considered along-with several other judgments in A.V. Venkateswaran, Collector of Customs Vs. Ramchand Sobhraj Wadhwani – AIR 1961 SC 1506 and Calcutta Discount Co. Ltd. Vs. ITO, Companies Distt. - AIR 1961 SC 372 , Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement and Another – (2010) 4 SCC 772 , and United Bank of India Vs. Satyawati Tondon and Others – (2010) 8 SCC 110 , H.P. And Others Vs. Ramchand Sobhraj Wadhwani – AIR 1961 SC 1506 and Calcutta Discount Co. Ltd. Vs. ITO, Companies Distt. - AIR 1961 SC 372 , Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement and Another – (2010) 4 SCC 772 , and United Bank of India Vs. Satyawati Tondon and Others – (2010) 8 SCC 110 , H.P. And Others Vs. Gujarat Ambuja Cement Limited and Another – AIR 2005 SC 3936 , Salonah Tea Co. Ltd. and Others Vs. Superintendent of Taxes, Nowgong and Others – (1988) 1 SCC 401 , and Godavari Sugar Mills Limited Vs. State of Maharashtra and Others – (2011) 2 SCC 439 . 18. Upon making analysis of these precedents, this court overruled the objection of alternative remedy and allowed the writ petitions in the following terms: “There are thus these six well recognized exceptions to the rule of alternative remedy, which can be culled out from the afore discussed judgments of the Supreme Court, firstly where the writ petition has been filed for enforcement of fundamental rights; secondly where there has been violation of principle of natural justice; thirdly where the order of proceedings is wholly without jurisdiction; fourthly where the vires of any Act is under challenge; fifthly where availing of alternative remedy subjects a person to very lengthy proceedings and unnecessary harassment; and sixthly where the writ petition can be entertained despite alternative remedy if the question raised is purely legal one, there being no dispute on facts. Despite afore-noted exception, especially fifth of the above, whether or not in a particular case the writ court should entertain a petition under Article 226/227 of the Constitution despite availability of alternative remedy, would always depend on the facts situation of a given case. In the present case, the petitioner has been able to demonstrate before this court that it has been charged VAT on purchase of ATF whereas it was fully exempt for the first phase, and has been charged excess rate by 24% in the second phase even though under the exemption notification issued by the Government it was not liable to pay VAT during the first phase and ought to have been charged more than the rate of 4% during the second phase and that the IOCL has certified the fact of purchase of ATF by the petitioner and charging of VAT thereon and deposit of the same with the respondent-Department. The petitioner has also been able to show that its HUB actually started though there may be some dispute as to when the HUB effectively started functioning at Jaipur. While the petitioner asserts that the petitioner's HUB started functioning at Jaipur from 05.01.2007, the respondents dispute this fact. Dispute raised by the respondent pertains to the exact date on which it started but they possibly are not in a position to dispute that HUB of the petitioner actually started working at Sanganer Airport, Jaipur, and by virtue of commencement of HUB at Jaipur, the petitioner-company was entitled to exemption of tax. Assertion that the petitioner did not give information regarding actual date of commencement of HUB to respondent-Department, does not tantamount saying that HUB actually did not start from Jaipur. In fact, the competent authority has not denied either the fact of payment of VAT by the petitioner or he in any case could not have denied the fact of exemption granted to the HUB. He has not even disputed the fact of commencement of HUB, which he in any case could not dispute in the face of certification by the Government of India and Airport Authority of India. Yet, this can be a matter of enquiry as to exactly on which date it started. Then there remains three objections, which the respondents have raised, firstly that HUB has not been got separately registered by the petitioner; secondly, that the ATF was not included in the registration certificate of the petitioner as dealer in Form-03 as an item which it intended to purchase and thirdly the petitioner did not in its return submit any claim for refund in Column 16 thereof. These objections shall have to be considered in the light of impugned order passed by the competent authority rejecting the application of the petitioner for refund. Perusal of the impugned order indicates that while the competent authority has mentioned that the purpose of refund application was different than for which the petitioner-company got itself registered and taking that view, the competent authority has relied on provisions of Section 17(2) and Rule 27 of the VAT Rules, to observe that refund can be claimed only against the amount of input tax paid by the assessee. But that is not the case here because the purpose for which the refund application was moved was different than merely claiming input credit. But that is not the case here because the purpose for which the refund application was moved was different than merely claiming input credit. The assessing officer also stated that the HUB was not registered and therefore the ATF was not included as one of the inputs, which the assessee could procure from the market. Third reason given by the assessing officer is that the application for refund was not on prescribed proforma. But then, the assessing officer in the order rejecting the application for refund has not either way commented on the fact whether or not the HUB started working from Jaipur on 05.01.2007 and if at all the HUB started working, was it not entitled to exemption from payment of VAT for first phase and subsequently reduced the rate in the second phase and thirdly if at all the petitioner has been made to pay full VAT at the rate of 28% for both the phases to IOCL, or whether the same has not been deposited with the respondent Department? What therefore emerges is that basic facts have remained undisputed even in the order of rejecting the application for refund. Contention that the petitioner is not a registered dealer with the Commercial Taxes Department, cannot be accepted as a valid objection. Question thus arises whether a person who is not at all registered as a dealer with the respondent-Department, can he still claim refund? The assessing officer, while rejecting the application of the petitioner for claim of refund, has relied on Section 17(2) of the Act and Rule 27, whereas the application for refund in the present case was made under Section 53 of the RVAT Act. Section 53 in its sub-section (3) itself provides that where an amount or tax is collected from a person, who is not registered under this Act and such amount or tax is not found payable by him, or where an amount in lieu of tax for any works contract is deducted in any manner by an awarder from any bill of payment to a contractor, who is not liable to pay tax under this Act, the amount or tax so collected or deducted shall be refunded in the prescribed manner by the Assistant Commissioner or the Commercial Taxes Officer, as the case may be. To the same effect is Rule 29. To the same effect is Rule 29. The said Rule provides that where any amount of tax or any amount in lieu of tax has been collected or deducted from a person not registered under the Act, and he same is not found payable by him, such person shall submit an application in Form VAT-22, to claim refund of said amount, to the Assistant Commissioner or Commercial Taxes Officer in whose jurisdiction such person ordinarily resides, and in case of person not residing in the State, such application shall be submitted to the officer authorized by the Commissioner in this behalf with proof of payment of tax, copy of contract and any document in support of the claim that it is not liable to pay the tax. On submission thereof, the officer, on being satisfied as to the correctness of such document, shall issue the refund in Form VAT-23-A within sixty days of submission of the application completed in all respect. When there are these provisions which provide for refund to a person not even registered under the Act, case of the petitioner-company cannot be taken worst than such person because petitioner-company in any case is a registered dealer with the respondent-Department. As regards delay in submitting the claim for refund, the assessing officer could very well decide not to grant any interest to the petitioner-company for the period of delay despite sub-section (4) of Section 53 of the RVAT Act, providing for payment of interest on the amount of refund at such rate as may be notified by the State Government, because the petitioner-company neither raised the claim for refund in the return nor did it file any revised return within the prescribed period of limitation, and that it raised the claim for refund of VAT paid in 2006-07, 2007-08 and 2008-09 for the first time on 17.09.2009. In all these writ petitions, the petitioner-company has sought a direction to the respondent Commercial Taxes Department for refund of the VAT collected from it which it was exempt to pay or was required to pay at the nominal rate of 4% per annum as a consequence of striking down the order refusing to refund such unduly collected tax and rejecting the claim of the petitioner-company for such refund, the petitioner-company has thus not directly approached this court claiming for a direction to the respondent-Department for refund nor has it straightway prayed for a direction for refund. In Salonah Tea Co. Ltd., supra, the Supreme Court has made a distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those where refund is sought as a consequential relief after striking down of the order of assessment etc. In Godavari Sugar Mills Limited, supra, again a similar distinction was reiterated by the Supreme Court. The fact that the present writ petitions have been filed in the latter category of two, besides being covered respectively by fifth and sixth exceptions enumerated above, according to which, relegating the petitioner to alternative remedy now after these writ petitions have remained pending for three years before this court, would subject it to lengthy proceedings and unnecessary harassment and the present writ petitions raise purely legal question, there being no substantial dispute on facts, though a feeble attempt was made on the part of the respondents about their being disputed questions of facts but in view of the aforesaid discussion, no such dispute is actually found to exist from the order rejecting the application for refund. Respondents cannot be therefore permitted to supply additional reasons to the rejection order in the course of arguments now. In view of the above discussion, the writ petitions succeed and are hereby allowed. Impugned orders dated 24.02.2010 in all the writ petitions, referred to above, are set aside. The matters are remanded back to the assessing officer to decide the claims of the petitioner-company for refund afresh, within six months after making appropriate enquiry in the light of above discussion. There shall be no order as to costs.”” 19. Impugned orders dated 24.02.2010 in all the writ petitions, referred to above, are set aside. The matters are remanded back to the assessing officer to decide the claims of the petitioner-company for refund afresh, within six months after making appropriate enquiry in the light of above discussion. There shall be no order as to costs.”” 19. The ultimate outcome of the aforesaid judgment was remand of the matter to the assessing officer to decide the petitioner's claim for refund after making appropriate enquiry in the light of discussions so made. The Assessing Officer was thus required to make enquiry in the limited scope as to exactly on which date the HUB stared and since when the interest was payable. The argument of the petitioner-company in this behalf must be therefore upheld that it was a remand to determine specific issue and that the scope of enquiry in such remand, was delineated by earlier judgment of this court itself. 20. The Supreme Court in K.P. Dwivedi Vs. State of U.P., supra, dealing with a case of remand where the High Court quashed the order passed by the Prescribed Authority and the Appellate Authority sent the matter back to the Prescribed Authority, with direction that the party should be allowed to adduce new/additional evidence in respect of the irrigated and non-irrigated lands in village Rampur and Raghavpatti, the Supreme Court in para 10 of the report held that “...The Prescribed Authority, in carrying out the limited remand, for re-examination of the categorisation of land as irrigated or unirrigated, could not have disturbed the order dated 05.8.1977 of the District Judge passed in appeal and confirmed on 19.1.1979 by the High Court in respect to the appellant's objections which were allowed to the extent of accepting his share to be 1/10th in joint family property, the exclusion of the 'grove' land, sale deed dated 10.12.1971 being bona fide and grant of fresh option to him to surrender land which may have been covered by the canal.” 21. The application dated 17.09.2009 claiming refund submitted by the petitioner-company in the first instance before the assessing officer is placed on record. Para 4 of the application reads thus:- “4. The application dated 17.09.2009 claiming refund submitted by the petitioner-company in the first instance before the assessing officer is placed on record. Para 4 of the application reads thus:- “4. ...Thus, the charging of VAT @ 28% by the IOCL, Jaipur, from the Applicant Company was incorrect and the Applicant Company is entitled to a refund of the excess amount of VAT that has been borne and suffered by the Applicant Company and has not been recovered from third parties. Separate Refund Applications are being filed for separate years.” 22. On receiving the said application, the assessing officer issued notice to the petitioner-company on 18.01.2010 calling upon it to submit the return relating to the period 2006-07, 2007-08, 2008-09 in Form VAT 10/VAT 11 along-with trading account, books of accounts, declaration forms in the support of sales made, etc. Column-4(A) of the said notice contains several sub-columns and sub-columns 1, 9, 10, 11 and 12 were filled in and another columns have been left blank. Sub-column (1) thereof required the petitioner to submit the return related to the period 2006-07, 2007-08, 2008-09 only in Form VAT-10/VAT-11. Sub-column (9) called upon it to furnish the details of tax deducted for the relevant period, because in the return submitted in respect of those years on Proforma VAT-10, it had indicated nil refund claim in relevant column of the Prescribed Proforma. 23. Clearly, the assessing officer at that time did not call for any details with regard to sufferance of incidence of tax by the petitioner-company and did not make specific query whether it has not passed on the burden on to the ultimate consumer. Even then, the petitioner-company, in reply to the notice, in para 1 of the reply to the notice, again specifically pleaded in the opening para 1 specifically pleaded thus:- “1. That the assessee submits that the Refund Applications have been filed by the assessee in accordance with the provisions of the RVAT Act and the assessee is certified to refund of the excess tax paid and suffered by it and according the refund applications have been filed.” 24. The assessing officer in the very first para of the earlier order rejecting the claim of refund, noted the assertion of the petitioner-company that it has not recovered the tax from the third parties. The assessing officer in the very first para of the earlier order rejecting the claim of refund, noted the assertion of the petitioner-company that it has not recovered the tax from the third parties. It rejected the refund application on various grounds, such as, (i) HUB of petitioner-company was not registered; (ii) ATF was not shown in petitioner's registration certificate; and (iii) refund application has not been filed in prescribed form. But, it did not at that time reject the claim of refund on the ground of unjust enrichment. 25. The petitioner-company in the earlier writ petitions, in its para 12, pleaded thus, “12. Thus, the charging of VAT @ 28% throughout by IOCL, Jaipur, from the Petitioner Company was incorrect and the Petitioner Company is entitled to a refund of the excess amount of VAT that has been borne and suffered by the Petitioner Company and has not been recovered from third parties.” 26. Surprisingly, the respondents in their reply to the aforesaid para, did not make any specific denial; they rather clubbed para 7 to 12 to simultaneously give their response by making a bald assertion that the petitioner-company is trying to get refund of the amount for which it is not entitled. But they did not make any specific denial of the assertion by the petitioner that it has borne and suffered the tax and has not recovered the same from the third party. 27. The case in BSNL and Others Vs. Abhishek Shukla and Others was arising out of writ jurisdiction and the Supreme Court noted that the Single Bench of the High Court allowed the writ petition as appellants did not file counter affidavit in a proper manner and denial was not in accordance with mandate of the Order VIII Rule 5 of the Code of Civil Procedure. Learned Single Judge of the High Court noticed that most of the averments made in the writ petition had not been traversed and, thus, the same would be deemed to have been admitted by the respondents. The Supreme Court in those facts held that the provisions of Order VIII Rule 5 of the Code of Civil Procedure would not be completely inapplicable to the writ proceedings under Article 226/227 of the Constitution. The Supreme Court in those facts held that the provisions of Order VIII Rule 5 of the Code of Civil Procedure would not be completely inapplicable to the writ proceedings under Article 226/227 of the Constitution. In a later judgment in Gian Chand, supra, the Supreme Court observed that Rules 3, 4 and 5 of Order VIII require that allegations of fact in the plaint and legal consequences flowing from its non-compliance, should be traversed, and it is obligatory on the part of the defendant to specifically deal with each allegation in plaint and when defendant denies any such fact, he must not do so evasively but answer the point of substance. It shall not be sufficient for him to deny generally the grounds alleged by the plaintiffs but he must be specific with each allegation of fact. The defendant must not do so evasively but answer the point of substance. Rule 5 deals with that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted against him. 28. Even if the law of pleadings is not held to be rigidly applicable to writ proceedings, the question arises whether the respondents can be allowed to take plea of unjust enrichment when they did not raise such plea specifically at the earlier stage. Neither was this made basis by the assessing officer of the earlier order rejecting the refund application despite specific assertion to the contrary by the petitioner-company in its refund application nor the defendants set up any such plea before this court in the earlier writ proceedings. This plea was rather contrarily raised by the petitioner-company that it has suffered the incidence of tax by itself and has not passed on the burden to third party, but the respondents did not deny the same, however, they did not raise earlier. The respondents, by virtue of doctrine of constructive res-judicata, are now precluded from raising this plea. 29. Moreover, if the judgment of this court in earlier proceedings has not been challenged by the respondents, and has been allowed to attain finality, that would imply that the correctness of the judgment has been accepted by the respondents. The respondents, by virtue of doctrine of constructive res-judicata, are now precluded from raising this plea. 29. Moreover, if the judgment of this court in earlier proceedings has not been challenged by the respondents, and has been allowed to attain finality, that would imply that the correctness of the judgment has been accepted by the respondents. That being so, they cannot be permitted to again reopen an issue which stands concluded in favour of the petitioner-company and against them. Surprisingly, the respondents in the present set of writ petitions have again raised the objection with regard to availability of alternative remedy. The assessing officer has also gone beyond the scope of enquiry in a clearly delineated remand order by rejecting the refund claim on an entirely new ground, which they did not take earlier. This court does not appreciate the manner in which its judgment has been sought to be circumvented by the respondents. It would be at this juncture useful to refer the discussion made in para 8 and 9 of the judgment of the Supreme Court in Devilal Modi, supra, which read as under:- “8. There can be no doubt that the fundamental rights guaranteed to the citizens are a significant feature of our Constitution and the High Courts under Art. 226 are bound to protect these fundamental rights. There can also be no doubt that if a case is made out for the exercise of its jurisdiction under Art. 226 in support of a citizen's fundamental rights, the High Court will not hesitate to exercise that jurisdiction. But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide Daryao and others Vs. The State of U.P. And Others. 9. The State of U.P. And Others. 9. It may be conceded in favour of Mr. Trivedi that the rule of constructive res judicata which is pleaded against him in the present appeal is in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have just referred.” 30. The judgment in Devilal, supra, was later followed by the Supreme Court in Shankara Co-operative Housing Society Limited, supra, in which the Supreme Court in para 89 of the report, observed as under:- “89. In the present case, it is admitted fact that when the contesting respondents filed W.P. No. 1051 of 1966, the ground of non-compliance of statutory provision was very much available to them, 62 but for the reasons best known to them, they did not raise it as one of the grounds while challenging the notification dated 11.12.1952 issued under the Evacuee Property Act. In the subsequent writ petition filed in the year 1990, initially, they had not questioned the legality of the notification, but raised it by filing an application, which is no doubt true, allowed by the High Court. In our view, the High Court was not justified in permitting the petitioners therein to raise that ground and answer the same, since the same is hit by the principles analogous to constructive res judicata.” 31. The Supreme Court in Devilal Modi, supra, in para 11 and 12 of the report, held as under:- “11. In our view, the High Court was not justified in permitting the petitioners therein to raise that ground and answer the same, since the same is hit by the principles analogous to constructive res judicata.” 31. The Supreme Court in Devilal Modi, supra, in para 11 and 12 of the report, held as under:- “11. As we have already mentioned, though the courts dealing with the questions of the infringement of fundamental rights must consistently endeavor to sustain the said rights and should strike down their unconstitutional invasion, it would not be right to ignore the principle of res judicata altogether in dealing with writ petitions filed by citizens alleging the contravention of their fundamental rights. Considerations of public policy cannot be ignored in such cases, and the basic doctrine that judgments pronounced by this Court are binding and must be regarded as final between the parties in respect of matters covered by them, must receive due consideration. 12. The result of the decision of this Court in the earlier appeal brought by the appellant before it is clear and unambiguous and that is that the appellant had failed to challenge the validity of the impugned order which had been passed by the Assistant Commissioner against him. In other words, the effect of the earlier decision of this Court is that the appellant is liable to pay the tax and penalty imposed on him by the impugned order. It would, we think, be unreasonable to suggest that after this judgment was pronounced by this Court, it should still be open to the appellant to file a subsequent writ petition before the Madhya Pradesh High Court and urge that the said impugned order was invalid for some additional grounds. In case the Madhya Pradesh High Court had upheld these contentions and had given effect to its decision, its order would have been plainly inconsistent with the earlier decision of this Court, and that would be inconsistent with the finality which must attach to the decisions of this Court as between the parties before it in respect of the subject-matter directly covered by the said decision. Considerations of public policy and the principle of the finality of judgments are important constituents of the rule of law and they cannot be allowed to be violated just because a citizen contends that his fundamental rights have been contravened by an impugned order and wants liberty to agitate the question about its validity by filing one writ petition after another.” 32. The assessing officer has recorded categorical finding in the impugned orders that the collection of VAT (Rs.85,20,747/- for the year 2006-07 in Writ Petition No.21473/2013, Rs.6,11,37,585/-for the year 2007-08 in Writ Petition No.21474/2013 and Rs.4,12,30,035/-for the year 2008-09 in Writ Petition 21475/2013) by IOCL from petitioner-company pursuant to notifications dated 31.03.2006 and 25.02.2008, was unauthorized. The petitioner-company is therefore held entitled to refund thereof together with interest. 33. In view of the discussion made above, this writ petition deserves to succeed and the same is hereby allowed. The impugned orders dated 20.09.2013 passed by respondent no.3 in all the three writ petitions, are quashed and set aside. The respondents are directed to take 05.01.2007 as the date of commencement of HUB to be correct, and are further directed to refund the amount referred to in the preceding para, together with interest at the rate of 9% per annum from 20.09.2013, the date on which they ought to have allowed refund claim of the petitioner-company but illegally rejected the same. 34. Compliance of judgment be made within a period of two months from the date its copy is produced before the respondents. There shall be no order as to costs. 35. This also disposes of stay applications.