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2015 DIGILAW 1852 (RAJ)

State of Rajasthan v. Interglobe Aviation Ltd.

2015-11-03

AJAY RASTOGI, J.K.RANKA

body2015
Hon'ble RANKA, J.—These three special appeals are directed against order of the learned Single Judge dated 13.5.2015. 2. The brief controversy rests on refund of Value Added Tax (VAT) which was charged by the Indian Oil Corporation Ltd. (IOCL) on Aviation Turbine Fuel (ATF), which was supplied/sold to the respondent-assessee amounting to Rs.85,20,747/- for the period 6.1.2007-31.3.2007 relevant to the assessment year 2006-07, Rs.6,11,37,585/- for the assessment year 2007-08 and Rs.4,12,30,035/- for the assessment year 2008-09. It was claimed by the respondent-assessee that VAT was wrongly collected by the IOCL Jaipur from the respondent-assessee who is a limited company, whereas in view of the exemption notifications issued by the State Government from time to time, the respondent-company having established a 'HUB' at the Sanganer Airport, Jaipur on 5.1.2007 on the desire of State of Rajasthan to increase inflow of tourists, in order to boost tourism, industrial activities and attract investment in the State, the State of Rajasthan u/sec. 4 and 8 of the Rajasthan VAT Act, issued a notification which provided exemption from VAT on sale of ATF to any airline establishing a 'HUB' in the State of Rajasthan, and such notification having come to the knowledge of respondent-assessee, after sometime it made a request to the Assessing Officer for refund of the aforesaid amounts. 3. It is an admitted case that VAT was collected from the respondent-assessee by IOCL @ 28%. It is also admitted that the respondent-assessee was granted registration certificate by the Revenue which, inter alia, included : aerated water, cookies, cashew nuts, juices, sandwiches, health bar, confectionery, tea and coffee for the sale/supply to the customers while on board in the aircraft. However, objection of the appellants was that in the registration the assessee did not include ATF (fuel) and thus initially the claim of the assessee was denied not only on account of this fact but also on account of the fact that the assessee was unable to prove the exact date of establishment of 'HUB' as also no evidence was led on record about VAT having been paid by the assessee or collected by IOCL. It was claimed that the assessee started using Sanganer Airport on and from 5.1.2007 when the 'HUB' became operational for parking aircrafts at night with the result that its flights started originating from Jaipur. It was claimed that the assessee started using Sanganer Airport on and from 5.1.2007 when the 'HUB' became operational 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 aircrafts stationed at Jaipur. 4. It would be appropriate to observe that on an application moved earlier for refund of VAT of the amounts noted hereinbefore, the Assessing Officer passed orders on 24.2.2010 by which its applications for refund of VAT were rejected. The respondent-assessee against rejection of the claim of refund vide orders dated 24.2.2010 approached this court by filing three writ petitions bearing S.B. Civil Writ Petition Nos.7128/2010, 7129/2010 and 7130/2010, inter alia, praying that the orders passed on 24.2.2010 rejecting the application was unjust and bad in law and be quashed and set aside and a mandamus be issued to the Commercial Taxes Department of the Govt. of Rajasthan to refund, to the petitioner-company, unduly collected amount of VAT of the amount referred hereinbefore. The learned Single Judge in its order dated 28.2.2013 decided the three writ petitions by holding that the claim of respondent-assessee is just and proper and despite objection of the counsel for the Revenue that alternative remedy was available to the respondent-assessee, the learned Single Judge had gone into the issue at length and after analysing the material on record came to the conclusion that the dispute lies in a narrow compass and no disputed question of fact was found and only legal issues were involved, and accordingly held in favour of the respondent-assessee by holding that the assessee is entitled for refund of the VAT unduly collected by the IOCL, however, remanded the matter to the Assessing Officer to decide the claim of the petitioner-company for refund afresh only on limited two issues examining the date of establishment of 'HUB' as also the rate of interest. Admittedly, this judgment of the learned Single Judge dated 28.2.2013 was not challenged by the Revenue and has attained finality. 5. Admittedly, this judgment of the learned Single Judge dated 28.2.2013 was not challenged by the Revenue and has attained finality. 5. The Assessing Officer revisited the matter after it was remitted by the learned Single Judge in the earlier proceeding and passed separate orders for the three assessment years in the light of the judgment rendered by the learned Single Judge on 28.2.2013, wherein the claim of the respondent-assessee about refund was rejected by analysing the provisions of sec. 53(5), by coming on a different plea that the VAT was not borne/suffered by the respondent-assessee and it failed to come within the definition of sec. 53(5). 6. This was again assailed before the learned Single Judge who vide impugned order in Writ Petition Nos.21473/2013, 21474/2013 and 21475/2014 again went into the issue and by a detailed judgment held that the denial of refund by the Assessing Officer was unjust and unauthorised and in the impugned order it was clarified that there was a limited remand in the earlier order dated 28.2.2013 as to finding out exact date of establishment of 'HUB' and rate of interest, and nothing more was required to be looked into by the Assessing Officer on merits and accordingly again directed refund of the aforesaid amounts however with interest @ 9% from 20.9.2013. 7. The said orders are assailed by the Revenue by these special appeals. 8. Learned counsel for the appellants contended that the learned Single Judge had remitted the matter to be looked into afresh. It was not a limited remand. He further contended that u/sec. 53(5) the amount is required to be refunded only to a dealer as also to one who suffered tax and while the respondent-assessee was not a dealer, as it was merely registered for selling aerated water, cookies, cashew nuts, juices, sandwiches, health bar, confectionery, tea and coffee etc. only but was not registered on account of ATF (fuel) and since the assessee did not deposit the said amount out of its own coffers, the amount deposited by third party may be on account of the assessee was not entitled to refund of the said amount. only but was not registered on account of ATF (fuel) and since the assessee did not deposit the said amount out of its own coffers, the amount deposited by third party may be on account of the assessee was not entitled to refund of the said amount. He further contended that it is a case of unjust enrichment and nothing more as the respondent-assessee has collected amounts from several customers and no case is made out by the respondent that it has paid the amount which was allegedly collected by IOCL and paid to the customers, and once the tax which was allegedly collected by IOCL has not been passed on to the customers, the amount is not required to be refunded as it is pure and simple case of unjust enrichment. He further contended that the assessee kept on sleeping over the matter and made a huge refund after almost three years knowing fully well that the 'HUB' was established but primarily on account of the fact that the amount was not passed on to the customers from whom the tax was collected, therefore, no claim of refund was made initially. 9. He further contended that language of sec. 53(5) is quite clear in this regard and once the language of sec. 53(5) is taken into consideration, one is entitled to refund, if a dealer himself deposits the tax, and it has been found that insofar as the ATF (fuel) is concerned, ATF was not included in the registration certificate, and once the registration certificate does not include ATF, question of refund does not arise. 10. He thus contended that the order of the learned Single Judge is not sustainable and requires re-consideration, and in support of his contentions relied upon Whirlpool Corporation vs. Registrar of Trademarks (1998) 8 SCC 1 , Mafatlal Industries Ltd. vs. Union of India (1997) 5 SCC 536 , Tata Sponge Iron Limited vs. State of Odisa (2009) 23 VST 371 (Odisa), State of M.P. vs. Vyankatal AIR 1985 SC 901 , Deccan Cement Limited vs. Assistant Director Mines & Geology Civil Appeal No.5484/2002, Shree Digvijay Cement vs. Union of India AIR 2003 SC 767 , and State of Andhra Pradesh vs. Concap Capacitors Balangar (2007) 8 SCC 658 . 11. 11. Per contra, learned senior counsel for the respondent-assessee contended that the Assessing Officer who passed order on 20.9.2013 was precluded to go into all these facts afresh as there was a limited remand by the learned Single Judge in its order dated 28.2.2013 where the learned Single Judge has gone into the issue elaborately and not only found that the writ petition is maintainable, allowed the writ petition and found that it is not a case where relegating the assessee to regular assessment proceedings, so also appeal was not necessary as the facts were not disputed and it was plain and simple case of assessee that they were not aware of the notifications which clearly conferred benefits on such companies who established 'HUB'. He contended that at the time when the order was passed in earlier writ petitions on 28.2.2013 only to the limited extent, as the assessee was not able to pin pointedly place on record the evidence of exact date of establishment of 'HUB' in the State of Rajasthan the matter was remanded. He further contended that the second issue of remanding the matter was relating to grant of interest only and the learned Single Judge allowed interest from much later date though it ought to have been allowed from the date application was moved on 17.9.2009 initially. He further contended that the argument of the counsel for the Revenue is unjust as the ATF (fuel) was supplied to the assessee for self consumption and not for onward sale as in the case of aerated water, cookies, cashew nuts, etc., and once the assessee is using the ATF (fuel) only for self consumption, there was no necessity of separate registration particularly to include ATF (fuel) in the registration. Even then he contended that in the original writ petition there was specific averment about this fact that ATF (fuel) was purchased for self consumption and use not for sale and there was no denial by the Revenue in this regard, but only a general objection in a cursory manner. Even the Assessing Officer has not adverted to this fact, being admitted position about this fact which has now been raised by the counsel for appellants. He further contended that the assessee has not recovered any tax and when no tax has been recovered from the customers, question of refund to customers does not arise. 12. Even the Assessing Officer has not adverted to this fact, being admitted position about this fact which has now been raised by the counsel for appellants. He further contended that the assessee has not recovered any tax and when no tax has been recovered from the customers, question of refund to customers does not arise. 12. He further contended that all along the case of the respondent-assessee has been that IOCL collected/charged VAT from the assessee and it has not been disputed by the Revenue neither at the time when the learned Single Judge decided the writ petitions in the first round of litigation vide order dated 28.2.2013 nor even in the impugned writ petitions. He further contended that at the time when the matter was decided in remand by the Assessing Officer in the light of judgment passed by learned Single Judge on 28.2.2013, the certificates of Govt. of India as well as the Airport Authority of India were placed on record about establishment of 'HUB' by the assessee on 5.1.2007 by the respondent, and admittedly this has also not been denied by the Assessing Officer now. 13. He thus contended that there was a limited remand and principle of res judicata applies and Revenue is precluded to travel beyond the pleadings/replies in the earlier writ petitions so also in the present writ petitions. He contended that when the earlier order of learned Single Judge has attained finality, therefore, question of raising all these issues afresh now is unjust and bad in law. He further contended that heavy cost is required to be imposed on the appellants in delaying due refund despite clear order of the learned Single Judge in the earlier writ petitions dated 28.2.2013. He further contended that heavy cost is required to be imposed on the appellants in delaying due refund despite clear order of the learned Single Judge in the earlier writ petitions dated 28.2.2013. In support of his contentions he relied upon Gian Chand & Brothers and Another vs. Rattan Lal alias Rattan Singh (2013) 3 SCC 606, BSNL & Others vs. Abhishek Shukla & Another (2009) 5 SCC 368 , K.P. Dwivedi vs. State of U.P. & Others (2003) 12 SCC 572, Paper Products Ltd. vs. Commissioner, of Central Excise, Mumbai (2007) 7 SCC 352 , Devilal Modi, Proprietor, M/s. Daluram Pannalal Modi vs. Sales Tax Officer, Ratlam & Others AIR 1965 SC 1150 , Shankara Cooperative Housing Society Limited vs. M. Prabhakar & Others (2011) 5 SCC 607 , RBF Rig Corporation, Mumbai vs. The Commissioner of Customs (Imports), Mumbai (2011) 3 SCC 573 , and Eastern Coalfields Limited vs. Tetulia Coke Plant Private Limited & Others (2011) 14 SCC 624 . 14. We have heard and considered the arguments raised at the Bar and have gone through the judgments passed by the learned Single Judge dated 28.2.3013 in the earlier proceedings so also the impugned order and the case laws cited at the Bar. In our view the judgment of the learned Single Judge is required to be upheld. Admittedly same and identical controversy was raised by the respondent-company by way of filing three writ petitions for the three assessment years and the learned Single Judge in his judgment dated 28.2.2013 had gone into the issue elaborately and had remanded the matter back to the Assessing Officer to examine the issue about the exact date of establishment of the 'HUB' by the respondent-assessee at the Sanganer Airport, Jaipur in terms of the notification dated 31.3.2006 which was issued by the Govt. of Rajasthan u/sec. 4 and 8 of the Rajasthan VAT Act, which inter alia allowed exemption to persons or class of persons. For the present purposes notification and sl.no.3 of the schedule II appended to the notification no. S.O. 458 dated 31.3.2006 is quoted hereunder:- FINANCE DEPARTMENT TAX DIVISION NOTIFICATION Jaipur, March 31, 2006. of Rajasthan u/sec. 4 and 8 of the Rajasthan VAT Act, which inter alia allowed exemption to persons or class of persons. For the present purposes notification and sl.no.3 of the schedule II appended to the notification no. S.O. 458 dated 31.3.2006 is quoted hereunder:- FINANCE DEPARTMENT TAX DIVISION NOTIFICATION Jaipur, March 31, 2006. S.O. 458.- In exercise of the powers conferred by section 4 and section 8 of the Rajasthan Value Added Tax Act, 2003 (Rajasthan Act No.4 of 2003), the State Government being of the opinion that it is expedient in the public interest so to do, hereby substitutes Schedule I to VI appended to the said Act by the following Schedule I to VI, namely.- SCHEDULE I (See sub-section (1) of section 8) GOODS EXEMPT FROM TAX S. No. Description of Goods Conditions, if any 1 2 3 1 Agricultural implements manually operated or animal driven or tractor or power driven, spare parts and accessories thereof, namely: (a) Ordinary Agricultural Implements: 1. Hand Heo (Khurpa or Khurpi); 2. Spade; 3, Gandasa; 4. Pick i.e. Khudali; 5. Axe; 6. Khanta; 7. Balecha; 8. Patela; 9. Hand-driven chaff cutter and their parts (except bolts, nuts and springs); 10. Sickle; 11. Baguri; 12. Hand-wheel Hoe; 13. Horticultural tools like budding, grafting knife, secateur pruning shear or hook, hedge shear; sprinkler, rake; 14. Sprayer, duster and sprayer-cum-duster 15, soil injector; 16. Jandra; 17. Wheel barrow; 18. Winnowing fan or winnower; 19. Dibbler; 20. SCHEDULE II (See sub-section (3) of section 8) EXEMPTION TO PERSONS OR CLASS OF PERSONS S. No. Category of person / Persons Conditions, if any 1 2 3 3 Aviation turbine fuel to any Airlines establishing 'HUB' in the State. One year from the date of Commencement of HUB. 15. The above table prescribes that a person who establishes 'HUB' in the State of Rajasthan would be allowed exemption till one year from the date of commencement of 'HUB' of ATF to any Airlines in the State. Accordingly, as per the entry no.3 sale of ATF to the respondent-assessee was exempted wholly. Thereafter another notification u/sec. 8(3) of the Rajasthan VAT Act was issued by the Govt. of Rajasthan which inter alia provided exemption from VAT to the extent the rate of tax exceeds 4% on sale of aviation spirit made to the airlines who had established a 'HUB' in the State. Thereafter another notification u/sec. 8(3) of the Rajasthan VAT Act was issued by the Govt. of Rajasthan which inter alia provided exemption from VAT to the extent the rate of tax exceeds 4% on sale of aviation spirit made to the airlines who had established a 'HUB' in the State. However, the said notification was rescinded on 19.1.2009. Thus inter alia from 25.2.2008 to 18.1.2009 sale of ATF was liable to tax @ 4% only in view of notification dated 25.2.2008. The respondent-company filed a claim of refund u/sec. 53(1) of the Rajasthan VAT Act for grant of refund of the excess tax collected with interest in respect of financial years 2006-07, 2007-08 and 2008-09 where it had specifically stated - “That this Refund Application is being filed as a consequence of excess collection of VAT on the sale of ATF by IOCL to the Applicant Company @ 28%, whereas during the period 6.1.2007 to 5.1.2008, sale of ATF to the Applicant Company was exempt wholly in view of Entry No.3 contained in Schedule II to the Rajasthan VAT Act and during the period 25.2.2008 to 18.1.2009, the sale of ATF was liable to tax @ 4% only in view of the notification dated 25.2.2008. It was only during the intervening period of 6.1.2008 and 24.2.2008 that ATF was subject to the levy of VAT @ 28%. In terms of Schedule II, Entry No.3, and Notification No.S.O.438, dated 25.2.2008, the sale of ATF was wholly exempt from taxation/leviable to tax @ 4% respectively, so long the sale of ATF was made to an airline having a HUB in Rajasthan. The Applicant Company having established a HUB at Sanganer, Jaipur was eligible for exemption. 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.” 16. Thus it was contended on behalf of the respondent that the VAT has not been recovered from third parties. Separate Refund Applications are being filed for separate years.” 16. Thus it was contended on behalf of the respondent that the VAT has not been recovered from third parties. In the light of these facts the learned Single Judge in its order dated 28.2.2013 thus held as under:- “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.” 17. 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.” 17. The learned Single Judge in the judgment dated 28.2.2013 had also taken into consideration the objections raised by the counsel for the appellants : (1) that 'HUB' has not been got separately registered by the respondent-assessee, (2) that ATF (fuel) was not included in the registration certificate of the petitioner as dealer in Form-03 as an item which it intended to purchase, and (3) the petitioner did not in its return, submit any claim for refund in column 16 thereof. After analysing these three objections, the learned Single Judge came to a definite finding of fact and it would be relevant to refer to the same:- “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 the 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-sec. (4) of Sec. 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.” 18. The learned Single Judge in the earlier proceeding dated 28.2.2013 had also gone into the issue that when the facts were quite clear a Writ as a remedy was available to the respondent and in the facts found that it was not required to relegate the petitioner-assessee to alternative remedy when writ petitions have been pending for over three years before the learned Single Judge and since it raised purely legal question there being no substantial dispute on facts, allowed the writ petitions. 19. 19. On perusal of the said order dated 28.2.2013 it bears out that the learned Single Judge though was clearly of the view that the respondent-assessee was entitled to refund but only for the purpose to examine the date of establishment of 'HUB' and rate of interest on the refund, remanded the matter back to the Assessing Officer. 20. Admittedly this order dated 28.2.2013 has become final and has not been assailed by the appellants and the finding of the learned Single Judge has attained finality. 21. In deciding the matter afresh, in our view the learned Assessing Officer travelled beyond the scope of the directions in the order dated 20.9.2013 inter alia raising the same dispute/points which were already referred to in its earlier order dated 24.2.2010 which had already been considered by the learned Single Judge in its judgment dated 28.2.2013. In the order dated 20.9.2013 by which the refund application was again rejected at least the Assessing Officer found as a finding of fact that the 'HUB' was established on 5.1.2007 as per the certificate issued by the Airport Authority of India bearing no. JP/AAI/OPS-1/2013/542 dated 1.5.2013. Not only the assessee submitted before the Assessing Officer the aforesaid certificate but also certificates from IOCL about the purchase of ATF where IOCL certified that it sold ATF to the respondent-assessee by charging VAT @ 28%. The assessee also placed on record the parking schedule of the air-crafts at the Sanganer Airport as also the certificate/details of the charges being levied on account of parking and other services provided by the Airport Authority of India to justify that the 'HUB' actually became operational from 5.1.2007. 22. It would be appropriate to quote para 12 of the earlier writ petition by the respondent-assessee:- “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.” 23. There was hardly any counter by the appellants in their reply filed before the Single Judge in the earlier writ petitions and this specific averment was neither challenged before the learned Single Judge nor raised as an issue for discussion during the course of arguments by the Revenue. 24. There was hardly any counter by the appellants in their reply filed before the Single Judge in the earlier writ petitions and this specific averment was neither challenged before the learned Single Judge nor raised as an issue for discussion during the course of arguments by the Revenue. 24. In our view once the claim of the respondent-assessee since the beginning had been that VAT has been borne and suffered by the respondent-company raising of the same argument now before us is of no avail to the appellants. The Assessing Officer in the order dated 20.9.2013 was certainly precluded from raising this controversy once again when the learned Single Judge had already found this fact uncontroverted by the appellants in judgment dated 28.2.2013. 25. The learned Single Judge in the impugned order was clearly of the view that the earlier judgment dated 28.2.2013 was a limited remand and observed as under :- “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 started 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.” Even the learned Single Judge in the impugned order noticed that :- ““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. The petitioner-company in the earlier writ petitions, in its para 12, pleaded thus, “12. But, it did not at that time reject the claim of refund on the ground of unjust enrichment. 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.”” The learned Single Judge observed :- “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.” (underlining by us) It would also be appropriate to quote the impugned judgment of the learned Single Judge : “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.” Thus in our view as well, the earlier judgment passed by the learned Single Judge dated 28.2.2013 having attained finality the Assessing Officer so also the appellants are unjustified in raising the issue again and again reiterating the same facts. 26. 26. Hon'ble Apex Court in the case of Gian Chand vs. Rattan Lal (supra) held:- “It is obligatory on the part of defendant to specifically deal with each allegation in the plaint and it shall not be sufficient for the defendant to deny generally the grounds alleged by the plaintiff but must be specific with each denial. As per Order 8 Rule 5, every allegation of fact in the plaint, if not denied specifically or by necessary implication shall be taken to be admitted against him.” Hon'ble Apex Court in the case of BSNL vs. Abhishek Shukla (supra) held:- “If the respondents do not specifically deny any averment in the writ petition, the same is deemed to have been accepted by them.” Hon'ble Apex Court in the case of K.P. Dwivedi vs. State of U.P. (supra) held:- “Where a matter is remanded before 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 shall not be allowed to be re-agitated.” In the case of Devi Lal Modi vs. Sales Tax Officer, Ratlam (supra) it was held as under:- “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. 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 proceedings 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. 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. 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 of file a subsequent writ petition before the Madhya Pradesh High Court and urge that the said impugned order was invalid for some additional grounds. 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 of 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 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.” The judgment in Devi Lal (supra) was later followed by the Hon'ble Apex Court in Shankara Co-operative Housing Society Ltd. vs. M. Prabhakar (supra) wherein it has been observed as under :- “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 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.” The Hon'ble Apex Court in the case of RBF Rig Corporation, Mumbai vs. The Commissioner of Customs (Imports), Mumbai, (supra) observed as under:- “Once the High Court has passed an order, which has not been challenged and has reached finality, the adjudicating authority cannot be permitted to circumvent the order passed by the High Court.” 27. Thus in our view as well, the appellants have miserably failed to substantiate its claim and as observed earlier, no case is made out of interference in the impugned order. 28. It would also be appropriate to refer to the argument raised by the counsel for appellants about the issue about unjust enrichment which is required to be rejected primarily because neither this issue was raised in the earlier proceedings and now after several years it cannot be required to be raised by the appellants at this stage. We further find that the appellants have failed to discharge their onus, and even otherwise on merits, about unjust enrichment the appellants cannot pray for in these proceedings. Particularly when the respondent is claiming its own amount of tax as refund which was not legally recoverable/collectable, theory of unjust enrichment is nothing but an afterthought and does not arise for examination in the appropriate proceedings. 29. The judgments relied upon by the counsel for the appellants, in our view, are distinguishable on facts and has been duly considered by the learned Single Judge in the earlier order dated 28.2.2013 as well. The judgment in the case of Whirlpool Corporation (supra) was about the question of maintainability of writ petition despite availability of alternative remedy, since the learned Single Judge in its earlier order dated 28.2.2013 had already held that the respondent-assessee cannot be relegated to the alternative remedy as the facts are not disputed and only legal issue arises and the said judgment dated 28.2.2013 having attained finality, and was not alive and open for the Assessing Officer to revisit afresh, the issue raised again by the learned counsel for the appellants, was not valid and justified. 30. The other argument raised by the counsel for the appellants was about grant of interest allowed by the learned Single Judge and we have noticed that the direction is only from 20.9.2013 onwards @ 9% which is the date when the application was illegally rejected by the Assessing Officer later and we find no justification to interfere in the said finding though the respondent-assessee raised the issue of refund from 17.9.2009 still the learned Single Judge has directed grant of interest from 20.9.2013. However, taking into consideration the argument raised by the counsel for the appellants that the rate of interest at 9% is on the higher side, we modify the rate of interest and restrict the same to 6% which will be allowable to the respondent-assessee from 20.9.2013. 31. In view of what we have observed hereinabove the appeal lacks merit and is accordingly dismissed, however, granting partial relief only to the extent of reduction of interest to 6% as against 9%. No costs.