ORDER : The petitioner, who was a registered dealer under the erstwhile Tamil Nadu General Sales Tax Act, 1959, on the file of the respondent, is before this Court challenging an order dated 10.03.2005 passed by the respondent rejecting the petitioner's application for refund of the tax remitted by the petitioner. 2. The petitioner filed the return for the assessment year 1997-98 and the accounts were called for and checked by the respondent and found to be in order and the total taxable turnover of the petitioner for the relevant year was determined at Rs.2,18,205/-. Since the turnover fell below the taxable minimum, no tax was due and accordingly, the Assessing Officer completed the assessment vide order dated 21.09.1998. By then, the petitioner had remitted a sum of Rs.24,003/- being the tax collected by them and since the Assessing Officer did not order for refund, the petitioner preferred an appeal against the orders of assessment to the Appellate Assistant Commissioner (CT), Pollachi, in AP.No.415/98, which was dismissed by order dated 07.09.1999. 3. Aggrieved by the same, the petitioner preferred an appeal to the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Coimbatore, in CTA.No.3/2000. The Tribunal, after hearing the petitioner as well as the Revenue, disposed of the appeal by order dated 14.02.2002 observing that on perusal of the assessment order, it is clear that the amount collected by way of tax at Rs.24,003/- has been retained by the Assessing Officer without any demand or invoking any penal provision as provided under Section 22(2) of the TNGST Act. Further, it was pointed out that no question of fact or question of law lies before the Tribunal to be decided as the Assessing Authority himself has declared that there is no tax due as the petitioner's turnover falls below the taxable minimum. With these observations, the Tribunal granted liberty to the petitioner to approach the Assessing Officer for redressal of the infirmity in the assessment order. 4. Therefore, the petitioner filed an application on 29.04.2002 requesting for refund of the tax amount of Rs.24,003/-. With these observations, the Tribunal granted liberty to the petitioner to approach the Assessing Officer for redressal of the infirmity in the assessment order. 4. Therefore, the petitioner filed an application on 29.04.2002 requesting for refund of the tax amount of Rs.24,003/-. This was followed by another representation / application dated 31.12.2004, wherein, apart from the factual issues, the petitioner had also relied upon a decision of the Hon'ble Division Bench of this Court in the case of State of Tamil Nadu v. Sakthi Sugars Limited [(2004) 137 STC 2] and submitted that the order passed by the Assessing Officer was not permissible under the provisions of the TNGST Act, as there is no corresponding provision as contained in Sections 11-B and 12-A of the Central Excise and Salt Act, 1944. Further, the petitioner stated that Section 22(2) of the Act would have no application to cases where a dealer receives the amount of the tax from the buyer and remits the same to the State as he cannot be said to have ‘collected’ by way of tax or purporting to be by way of tax under the Act, amounts, not payable as such. The applications were considered by the respondent and by the impugned order, they have been rejected. 5. The primary ground on which the application for refund has been rejected is on the ground that the petitioner did not file the name of the real beneficiary to whom the refund has to be granted either before the Assessing Officer or the Appellate Authority or even before the Tribunal. The petitioner did not report what steps they took to refund the tax collected from their customers whether they issued credit note to them, etc. Further it was pointed out that if any residuary amount is available, namely, Rs.24,003/-, this amount paid over to the petitioner amounts to unjust enrichment as per the decision of the Hon'ble Supreme Court under Section 22(2) of the TNGST Act. Further, by referring to the decision in the case of Mafatlal Industries Ltd. v. Union of India ([1998] 111 STC 467), it was observed that though Tribunal cancelled the penalty, it has not mentioned any refund to the ultimate beneficiary as per the decision of the Hon'ble Supreme Court, which obligation is still not discharged by the petitioner. Further, by referring to the decision in the case of Mafatlal Industries Ltd. v. Union of India ([1998] 111 STC 467), it was observed that though Tribunal cancelled the penalty, it has not mentioned any refund to the ultimate beneficiary as per the decision of the Hon'ble Supreme Court, which obligation is still not discharged by the petitioner. Therefore, it was concluded that without refund to the ultimate beneficiary, it would be contrary to the decision of the Hon'ble Supreme Court in Mafatlal's case cited, the said order dated 10.03.2005 is put to challenge in this Court. 6. Heard Mr.S.Ramanathan, learned counsel appearing for the petitioner and Mr.K.Venkatesh, learned Government Advocate appearing for the respondent. 7. Before we proceed to consider as to whether the respondent was right in observing that the petitioner had not disclosed the name of the beneficiary to whom the tax refund has to be granted, it would be first necessary to see as to whether the respondent has jurisdiction to retain the amount of tax remitted by the petitioner after the assessment was completed vide order dated 21.09.1998 stating that the tax due is nil. 8. In my considered view, the Tribunal rightly understood the legal effect of such an order of assessment, wherein the turnover of the petitioner fell below the taxable minimum and the rate of tax was nil and therefore, the Tribunal observed that the amount collected by way of tax from the petitioner at Rs.24003/- has been retained by the Assessing Officer without any demand or invoking any penal provision as provided under Section 22(2) of the TNGST Act. Thus, answer to the question as to whether the respondent can retain the amount of tax is in the negative. 9. The respondent seeks to non-suit the petitioner by referring to the decision of Mafatlal (cited supra). However, the said decision would have no application to a case arising under the provisions of the TNGST Act, moreover, no action was initiated against the petitioner under Section 22(2) of the TNGST Act. 10. 9. The respondent seeks to non-suit the petitioner by referring to the decision of Mafatlal (cited supra). However, the said decision would have no application to a case arising under the provisions of the TNGST Act, moreover, no action was initiated against the petitioner under Section 22(2) of the TNGST Act. 10. This Court in the case of Sakthi Sugar (cited supra) considered some what an identical issue, wherein the dealer treated gallonage fee as a part of its turnover and had collected tax from its buyers which had been remitted to the State, although at the time of the collection, by reason of the judgment rendered by this Court in the case of E.I.D. Parry (India) Ltd. v. State of Tamil Nadu [ (1979) 44 STC 352 ] gallonage fee was not liable to be included. The State contended that refund cannot be effected by applying the doctrine of unjust enrichment and the penal proceedings were initiated and testing the correctness of the action, the Hon'ble Division Bench held as follows: “3. While the good intentions of the officer who made the order is evident and is worthy of appreciation, nevertheless, an order of that kind is not permissible under the provisions of the Act. The concept that was apparently in view of the authority has been developed and has found place in the Central Excise Act which incorporates the doctrine of unjust enrichment. The State here, however, even while being aware of that concept and while making attempts to sustain the order made by its officers way back in the year 1983, has not chosen to give legislative content to that concept by making the necessary amendments to the sales tax legislation. The State here, however, even while being aware of that concept and while making attempts to sustain the order made by its officers way back in the year 1983, has not chosen to give legislative content to that concept by making the necessary amendments to the sales tax legislation. As rightly pointed out by the counsel for the Revenue, the concept of unjust enrichment is now part of the established law in this country after the decision of the nine Judges Bench of the apex Court in the case of Mafatlal Industries Ltd. v. Union of India [1998] 111 STC 467 wherein the majority of the learned Judges, who decided that case, held that the doctrine of unjust enrichment is a just and salutary doctrine ; that no person can seek to collect the tax or duty both ways, that a person cannot collect the duty from the purchaser at one end and also collect the same from the State on the ground that it has been collected from him contrary to law. The apex Court also held that, that doctrine however, is not applicable to the State as the State represents the country and no one can speak of the people being unjustly enriched. In the case of Mafatlal the court upheld the Sections 11-B and 12-A of the Central Excises and Salt Act, 1944 which provisions were introduced by the amending Act of 1991. 4. In the absence of any provision corresponding to Sections 11-B and 12-A of the Central Excises and Salt Act, 1944 in the Tamil Nadu General Sales Tax Act, 1959, it is not permissible for the authorities under the Act to impose a penalty on the sole ground that it is meant to offset a refund, the result of making which would result in unjust enrichment to the dealer. 5. Moreover, in this case, the State has yet another hurdle. Section 22(2) of the Act has been interpreted by this Court in the case of State of Tamil Nadu v. K. Mohammed Ibrahim Sahib [1991] 83 STC 402 to mean that the section would have no application to cases where a dealer receives the amount of the tax from his buyers and remits the same to the State. Section 22(2) of the Act has been interpreted by this Court in the case of State of Tamil Nadu v. K. Mohammed Ibrahim Sahib [1991] 83 STC 402 to mean that the section would have no application to cases where a dealer receives the amount of the tax from his buyers and remits the same to the State. Such action on the part of the dealer cannot, it has been held, bring him within the mischief of the provisions, as he cannot be said to have "collected" by way of tax or purporting to be by way of tax under the Act, amounts, not payable as such. The case of the dealer here falls squarely within the ratio of that judgment.” 11. In the light of the above referred decision, the Court pointed out that in the absence of any provision corresponding to Sections 11-B and 12-A of the Central Excise and Salt Act, 1944, in the Tamil Nadu General Sales Tax Act, it is not permissible for the authorities under the Act to impose a penalty on the sole ground that it is meant to offset a refund, the result of making which would result in unjust enrichment to the dealer. In the case on hand, the Tribunal took note of this legal position and made an observation as to how the Assessing Officer was not justified in retaining the tax amount to his account. 12. In R.Abdul Quader and Co. v. Sales Tax Officer, Second Circle, Hyderabad, reported in AIR 1964 SC 922 , it was held that if a dealer has collected anything from a purchaser which is not authorised by the taxing law, that is a matter between him and the purchaser, and the purchaser may be entitled to recover the amount from the dealer. But unless the money so collected is due as a tax, the State cannot by law make it recoverable simply because it has been wrongly collected by the dealer. This cannot be done directly for it is not a tax at all within the meaning of Entry 54 of ,List II, nor can the State legislature under the guise of incidental or ancillary power do indirectly what it cannot do directly. 13. In the instant case, the Assessing Officer has assessed the petitioner to a nil rate of tax. This cannot be done directly for it is not a tax at all within the meaning of Entry 54 of ,List II, nor can the State legislature under the guise of incidental or ancillary power do indirectly what it cannot do directly. 13. In the instant case, the Assessing Officer has assessed the petitioner to a nil rate of tax. Therefore, the respondent is not justified in retaining the amount to himself and the interpretation given by the respondent stating that the petitioner has not produced the name of the ultimate beneficiary or the person who has paid the tax is of no consequence, as the there is no law which empowers the respondent to retain the tax, which was remitted by the petitioner in the absence of any assessment. 14. As noticed above, the case pertains to an assessment for the year 1997-98, much prior to the introduction of Section 3(1)(b) of the TNGST Act which was inserted with retrospective effect from 01.04.2000 and therefore, the respondent cannot fall back on the said provision also. 15. Furthermore, this is not a case where the petitioner, without authority of law, had collected the tax. He being the registered dealer was empowered to collect the tax and the reason for claiming of the refund is because the turnover falls below the taxable minimum and therefore, the question of initiation of penalty proceedings under Section 22(2) of the TNGST Act does not arise. 16. Hence, for all the above reasons, the petitioner is entitled for the refund of the tax remitted by them. Accordingly, the writ petition is allowed and the impugned order is set aside and the respondent is directed to refund the amount of tax paid by the petitioner namely Rs.24,003/- within a period of eight weeks from the date of receipt of a copy of this order. If the petitioner is still continuing his business and he is a registered dealer on the file of the respondent under the provisions of the TNVAT Act or the CST Act, it is open to the respondent/Assessing Officer to adjust this amount towards the current tax dues. No Costs.