ORDER : VINOD CHANDRAN, J. 1. The revisions have been referred to us by a Division Bench, doubting the sustainability of the findings of another Division Bench; with respect to forfeiture of tax under Section 72 of the Kerala Value Added Tax Act, 2003 [for brevity "KVAT Act"] and Section 46A of the Kerala General Sales Tax Act, 1963 [for brevity "KGST Act"]. The question arose in the context of the challenge raised against the levy of service tax under the Finance Act, 1994 and sales tax under the KGST Act on sale of SIM Cards. A Division Bench of this Court found, on the strength of 'aspect theory', that both taxes are leviable on the sale price of SIM Cards, which includes activation charges also. Later, by a judgment of the Hon'ble Supreme Court it was held that activation charges cannot be included for levy of sales tax for reason of there being no transfer of property in goods; either by way of sale or lease. 2. Some of the Telecom Companies challenged the levy under the Finance Act, 1994 and some others the levy under the Sales Tax enactment; alternatively subjecting themselves to the other levy. Here, we have an assessee-respondent who had challenged the service tax levy on sale of SIM Cards. They paid sales tax under the KGST Act after collecting the same from their customers. The issue spanned over a number of years and sales tax was collected and paid under the KGST regime as also the KVAT regime. After the judgment of the Hon'ble Supreme Court, the State conceded to the position that there is no sale of goods involved in the sale of SIM cards and, hence, there could be no levy made under the KGST Act and KVAT Act. A batch of writ petitions pending before this Court which challenged the levy under the KVAT Act was placed before a Division Bench. The writ petitions were allowed, directing the Assessing Officer [for brevity “AO”] to exclude the value of SIM Cards and Recharge Coupons from taxable turnover. The Division Bench, however, made it clear that tax if any collected, on SIM Cards and Recharge Coupons, should be forfeited under Section 72 of the KVAT Act. Refund was directed to be considered strictly in terms of Form 21D as furnished by the customers in terms of Rules 55 and 56. 3. The Division Bench, however, made it clear that tax if any collected, on SIM Cards and Recharge Coupons, should be forfeited under Section 72 of the KVAT Act. Refund was directed to be considered strictly in terms of Form 21D as furnished by the customers in terms of Rules 55 and 56. 3. The present revisions arise from assessments completed under the KGST Act, which desisted from imposing the levy under that Act for the years 2002-03, 2003-04 and 2004-05. However, the tax collected and paid already by the respondent-assessee were directed to be forfeited under Section 46A of the KGST Act. The assessment was carried out under Section 17D of the KGST Act by a Fast Track Team. The appeal from the order under Section 17D lie directly to the Tribunal. The Tribunal found that the collection of tax in the subject assessment years were perfectly legal; the same being a direct consequence of a declaration made by a Division Bench of this Court. There being no illegality in the collection, it was found that there can be no forfeiture under Section 46A for reason of there being no violation under sub-section (2) of Section 22. The order forfeiting the tax was set aside. There was also an observation made that question of unjust enrichment does not arise in the case since the assessee has a plea that they remitted this amount by way of service tax to the Government. We are not concerned with the second observation made, since we are only called upon to decide as to whether the forfeiture under Section 46A was proper. As noticed above, the reference has been made by a Division Bench, since an earlier Division Bench had directed forfeiture under Section 72 of the KVAT Act under identical situation and Section 46A of the KGST Act is in pari materia with the provision for forfeiture under the KVAT Act. 4. The learned Senior Government Pleader Sri.Mohammed Rafiq has taken us through the various judgments placing in perspective the history of the litigation. 4. The learned Senior Government Pleader Sri.Mohammed Rafiq has taken us through the various judgments placing in perspective the history of the litigation. Escotal Mobile Communications v. Union of India [(2002) 126 STC 475] dated February 15, 2002 was the Division Bench judgment in a batch of writ petitions, which challenged the levy of service tax on the taxable service provided by cellular telephone service providers and certain other petitions seeking a restrain order against the sales tax authorities from taking proceedings to assess the petitioner-Companies to sales tax in respect of its turnover in Kerala. Relying on the 'aspect theory' as propounded in Federation of Hotel and Restaurant Association of India v. Union of India [ (1989) 3 SCC 634 : (1989) 74 STC 102 (SC)], it was held that: “... while the State Legislature is competent to impose tax on “sale” by a legislation relatable to entry 54 of List II of Seventh Schedule, the tax on the aspect of “services” rendered not being relatable to any entry in the State List, would be within the legislative competence of Parliament under article 248 read with entry 97 of List I of the Seventh Schedule to the Constitution” (sic para 36). The conclusion in paragraph 47 was as follows: “47. Conclusions: (a) the transaction of sale of SIM card is without doubt exigible to sales tax under the KGST Act. The activation charges paid are in the nature of deferred payment of consideration for the original sale, or in the nature of value addition, and, therefore, also amount to parts of the sale and become exigible to sales tax under the KGST Act. (b) Both the selling of the SIM card and the process of activation are “services” provided by the mobile cellular telephone companies to the subscriber, and squarely fall within the definition of “taxable service” as defined in suction 65(72)(b) of the Finance Act. They are also exigible to service tax on the value of “taxable service” as defined in section 67 of the Finance Act”. Hence, the decision dated February 15, 2002 prior to the assessment years in these revisions declared that the telecommunication companies are liable to both service tax and sales tax on their turnover of sale of SIM Cards and Recharge Coupons. We say this because the assesee herein, then was made liable to pay both the taxes. 5. Hence, the decision dated February 15, 2002 prior to the assessment years in these revisions declared that the telecommunication companies are liable to both service tax and sales tax on their turnover of sale of SIM Cards and Recharge Coupons. We say this because the assesee herein, then was made liable to pay both the taxes. 5. However, a three-Judge Bench of the Hon'ble Supreme Court in BSNL v. Union of India [ (2006) 3 SCC 1 ] found so in paragraph 91: “91. For the reasons aforesaid, we answer the questions formulated by us earlier in the following manner: (A) Goods do not include electromagnetic waves or radio frequencies for the purpose of Article 366(29A)(d). The goods in telecommunication are limited to the handsets supplied by the service provider. As far as the SIM cards are concerned, the issue is left for determination by the Assessing Authorities. (B) There may be a transfer of right to use goods as defined in answer to the previous question by giving a telephone connection. (C) The nature of the transaction involved in providing the telephone connection may be a composite contract of service and sale. It is possible for the State to tax the sale element provided there is a discernible sale and only to the extent relatable to such sale. (D) The issue is left unanswered. (E) The aspect theory would not apply to enable the value of the services to be included in the sale of goods or the price of goods in the value of the service”. It was, hence, categorically held that the activation charges cannot be treated as consideration for sale of goods. With respect to the sale of SIM Cards, the issue was left for determination by the Assessing Authorities as to whether there is any sale of goods involved. The transfer of right to use goods was held to be available only when giving a telephone connection, i.e. when an instrument 2was supplied to the customer. Aspect theory would not enable inclusion of value of the services to be included in the sale of goods. 6. Conceding to this authoritative pronouncement, the Department and its officers found that SIM Cards have no intrinsic value; sans the facility for activation and utilisation of telecom services. Aspect theory would not enable inclusion of value of the services to be included in the sale of goods. 6. Conceding to this authoritative pronouncement, the Department and its officers found that SIM Cards have no intrinsic value; sans the facility for activation and utilisation of telecom services. SIM cards are supplied to the customers to provide telephone services and the activation charges do not constitute either a consideration, for transfer of right to use or for sale of goods. Commissioner of Central Excise & Customs, Cochin v. Idea Mobile Communication Ltd. [(2009) 22 VST 454 (Ker.)] considered an appeal in which the Commissioner challenged the order of the Customs, Excise and Service Tax Appellate Tribunal cancelling the demand of service tax on the value of SIM Cards sold by the respondent to their mobile subscribers. Though the State was not a party, since the Hon'ble Supreme Court in BSNL(supra) had directed the A.O's to consider the existence of any transfer of property in goods by sale of SIM Cards, the State of Kerala, represented by Commercial Taxes Department was also heard. Therein, the State produced orders of the Assistant Commissioner of Commercial Taxes, Special Circle, Thiruvananthapuram dropping the proceedings to levy sales tax on SIM Cards, conceding to the position canvassed in and upheld by the Supreme Court in BSNL (supra), finding no intrinsic sale value (read-of goods) in the sale of SIM Cards. The Division Bench of this Court upheld the levy of service tax and vacated the order of the CESTAT. The aforesaid decision was challenged before the Hon’ble Supreme Court, the result of which is reported in Idea Mobile Communication Ltd. v. Commissioner of Central Excise and Customs, Cochin [ (2011) 12 SCC 608 ]. The appeal was dismissed, upholding the decision of the High Court finding the levy of service tax under the Finance Act, 1994 to be proper and also holding that the wrong remittance made by certain operators under the Sales Tax enactments would not absolve the responsibility of payment of service tax. 7. It is the submission of the learned Senior Government Pleader that the fact remains that certain assesses-operators subjected themselves to sales tax and others to service tax; while the dispute was pending before the various Courts. All the same it is undisputed that whichever levy they subjected themselves to; the taxes were collected from the consumers. 7. It is the submission of the learned Senior Government Pleader that the fact remains that certain assesses-operators subjected themselves to sales tax and others to service tax; while the dispute was pending before the various Courts. All the same it is undisputed that whichever levy they subjected themselves to; the taxes were collected from the consumers. The subsequent decision of the Hon’ble Supreme Court having held the activation charges to be not includable in the turnover for levy of sales tax, the Department had decided not to levy any sales tax on the value of SIM Cards; since, bereft of the activation charges the value of the SIM card would be very negligible and the assessment and recovery would not be feasible or worthwhile. However, the tax remitted in the subject assessment years having been collected from the consumers, it has to be necessarily forfeited, since otherwise it would lead to unjust enrichment at the hands of the assesses. The learned Senior Government Pleader does not dispute the position that if the consumer from whom the amount was collected approach the authority for reimbursement of such sum in the prescribed manner producing the required documents, then necessarily the same would be refunded. The forfeiture under Section 46A is perfectly in order and the direction of the earlier Division Bench in Tata Teleservices Ltd. v. State of Kerala & Others [W.P.(C) No.27445 of 2005 & Connected cases dated 13.02.2009] to forfeit the amounts collected and paid under Section 72 of the KVAT Act applies squarely to the provisions under Section 46A of the KGST Act also. The provisions under the two enactments, for forfeiture, are in pari materia and there could be no impediment in law for interpreting the provision; as has been doubted by the later Division Bench in its reference order. It is also submitted that if the decision in Tata Teleservices Ltd. (supra) is upheld by the Full Bench, then necessarily the revisions of the State challenging the order of the Tribunal would have to be allowed to the extent of the cancellation of forfeiture being set aside. 8. The learned Counsel for the respondent Sri.A.Kumar would alertly point out that Section 46A deals specifically with contravention of subsection (2) or (3) of Section 22. 8. The learned Counsel for the respondent Sri.A.Kumar would alertly point out that Section 46A deals specifically with contravention of subsection (2) or (3) of Section 22. Sub-section (3), applies to those who are unregistered and is not applicable to the assessee-respondent, since they are registered under the KGST Act. Subsection (2) of Section 22 speaks of collection of any sum purporting to be by way of tax on the sale of goods, in respect of which he is not liable to pay tax or at a rate exceeding the rate at which he is liable to pay tax as per sub-clause (a). Again, sub-clause (b) would not be applicable, since it deals with purchase of goods by a registered dealer. Only when there is any sum collected by way of tax by a registered dealer where he is not liable to pay tax or at a rate exceeding the rate at which the liability is cast on him could there be a penalty imposed and the amounts collected forfeited. In the present case, it is pointed out that as early as in February, 2002 a Division Bench of this Court in Escotal Mobile Communications Ltd. (supra) specifically found sales tax to be leviable on sale of SIM Cards. The tax collection made by the respondent-assessee was in pursuance of such declaration made by this Court. Whatever tax was collected was also at the rates at which it was levied under the sales tax enactment. There cannot be found any contravention of Section 22(2) when the amounts were so collected by the assessee-respondent. When the tax collection is legal at the time when it was collected, there could be no forfeiture effected under Section 46A. Section 46A is essentially a penal provision and there should be mens rea insofar as the imposition of penalty and forfeiture of the sum collected as tax; imposed on the assessee-registered dealer. There being no such illegality in the collection, there could also be no forfeiture. With respect to unjust enrichment, it is pointed out that the assessee had conceded to the levy of sales tax and had not collected any amounts by way of service tax. What is collected by way of sales tax now would have to be paid to the Central Government by way of service tax. With respect to unjust enrichment, it is pointed out that the assessee had conceded to the levy of sales tax and had not collected any amounts by way of service tax. What is collected by way of sales tax now would have to be paid to the Central Government by way of service tax. The consumer is also not put to any hardship for reason of both the taxes being enabled for collection by the dealer registered under the sales tax enactment or the Finance Act. 9. Reliance is placed on The Sales Tax Officer, Navgaon and Another v. Timber & Fuel Corporation [ (1973) 31 STC 585 (SC)] to contend that in similar circumstances the Hon’ble Supreme Court has held that a retrospective exemption granted, cannot, as a corollary, result in the collection being declared illegal. The decision of the Punjab & Haryana High Court reported in M/s. Idea Cellular Ltd. v. Union of India & Others [2015-VIL-149 (P&H)] is also relied on to contend that in identical circumstances of sale of SIM Cards the sales tax collected and remitted to the CTD; the amounts were directed to be transmitted to the Union of India for satisfaction of the levy of service tax. Such equitable consideration is eminently possible by this Court, is the alternative compelling defence set up. 10. What comes up for consideration, as we noticed above, is the question of whether there could be forfeiture of the collected tax under Section 46A of the KGST Act, when the collection was validly made. We extract the provision hereunder: "46A. Such equitable consideration is eminently possible by this Court, is the alternative compelling defence set up. 10. What comes up for consideration, as we noticed above, is the question of whether there could be forfeiture of the collected tax under Section 46A of the KGST Act, when the collection was validly made. We extract the provision hereunder: "46A. Penalty for illegal collection of tax:- (1) If any person collects any sum by way of tax or purporting to be by way of tax in contravention of sub-section (2) or sub-section (3) of Section 22, he shall be liable to pay penalty not exceeding five thousand rupees and any sum collected by the person by way of tax or purporting to be by way of tax in contravention of sub-section (2) or sub-section (3) of Section 22 shall be liable to be forfeited to the Government by an order issued by the assessing authority after giving such person an opportunity to show cause why penalty or forfeiture shall not be ordered: Provided that no penalty or forfeiture shall be ordered under this sub-section if the assessing authority is satisfied that the sum so collected has been returned to the person from whom it was collected. (2) Where any sum is forfeited to the Government under sub-section (1), any person from whom the amount was collected in contravention of the provisions of sub-section (2) or sub-section (3) of Section 22 may apply to the assessing authority for reimbursement of such sum and the amount shall be reimbursed to such person in the prescribed manner. (3) No prosecution for an offence under this Act shall be instituted in respect of the same facts on which a penalty has been imposed or forfeiture has been ordered under this Section”. There was a submission made by the learned Senior Government Pleader that if there was no forfeiture effected, there would be an impasse insofar as even the customer from whom the tax collected would not be enabled to seek refund from the department. A refund is enabled only if there is a forfeiture. If the forfeiture is set aside, then there could be no refund to the consumer who collected the tax and in any event, there could be no refund to the assessee. A refund is enabled only if there is a forfeiture. If the forfeiture is set aside, then there could be no refund to the consumer who collected the tax and in any event, there could be no refund to the assessee. The fact is emphasized that the Division Bench of this Court in Escotal Mobile Communications Ltd. (supra) had specifically found that both the taxes are leviable on the very same transaction in SIM Cards. The respondent-assessee could have collected both the taxes from the consumers and they cannot now plead that what was collected by them as sales tax should be adjusted towards the service tax levy. 11. We are of the opinion that the entire controversy arises on the question whether Section 46A of the KGST Act is a penal provision or not and whether in the facts and circumstances there could be found any conscious, deliberate, contumacious conduct on the part of the respondent-assessee in having collected the tax, which was valid at the time of collection and also remitted to the State Government. We also are called upon to decide if, we find no contumacious conduct on the part of the assessee; is there a total relief from forfeiture. The issue is no longer res integra having been answered by a Constitution Bench of the Hon'ble Supreme Court in R.S.Joshi Vs. Ajit Mills Ltd. [ 1977 (4) SCC 98 ]. The question of mens rea also stands answered therein. 12. The appeal in R.S.Joshi (supra) arose in the context of the Gujarat High Court having struck down a provision for forfeiture in identical circumstances of a prohibition from collecting any amounts as tax, where the liability does not arise and the assailed provision having two consequences of penalty of Rs.2,000/-and liability to forfeiture. The question framed was as to whether the State Legislature had the power to say that the sums collected, by dealers, by way of tax; when it is not exigible under the State law and indeed prohibited by it, shall be forfeited to the public exchequer punitively under Entry 54 & 64 of List II of the Seventh Schedule to the Constitution. The dealers attacked the provision mainly on the ground of the forfeiture being not a penal provision. The dealers attacked the provision mainly on the ground of the forfeiture being not a penal provision. The argument itself was that “the expression “forfeiture” is a ritualistic recital to cover up a secret design to snatch from the traders sums which cannot be reached at except by the device of forfeiture. In frank fact, it is not a measure of penalty but an oblique methodology to do an illegitimate thing which is beyond the legislature’s legitimate reach." (sic-para 17); which question was pointedly dealt with in the concurring judgments. 13. Krishna Iyer, J. who authored the majority judgment; found that speaking generally and having in mind the object of the provision, forfeiture had a punitive impact. Quoting from Blacks Law Dictionary it was found that the terms 'fine', 'forfeiture' and 'penalty' are often used loosely and 'forfeiture' is a penalty by which one looses his right and interest in a property. However it did not require mens rea, was the categoric finding, in the following paragraph: "19. The same connotation has been imparted by our Court too. A Bench has held Bankura Municipality Vs. Lalji Raja AIR 1953 SC 248 : “According to the dictionary meaning of the word ‘forfeiture’ the loss or the deprivation of goods has got to be in consequence of a crime, offence or breach of engagement or has to be by way of penalty of the transgression or a punishment for an offence. Unless the loss or deprivation of the goods is by way of a penalty or punishment for a crime, offence or breach of engagement it would not come within the definition of forfeiture.” This word “forfeiture” must bear the same meaning of a penalty for breach of a prohibitory direction. The fact that there is arithmetical identity, assuming it to be so, between the figures of the illegal collections made by the dealers and the amounts forfeited to the State cannot create a conceptual confusion that what is provided is not punishment but a transference of funds. If this view be correct, and we hold so, the legislature, by inflicting the forfeiture, does not go outside the crease when it hits out against the dealer and deprives him, by the penalty of the law, of the amount illegally gathered from the customers. If this view be correct, and we hold so, the legislature, by inflicting the forfeiture, does not go outside the crease when it hits out against the dealer and deprives him, by the penalty of the law, of the amount illegally gathered from the customers. The Criminal Procedure Code, Customs & Excise Laws and several other penal statutes in India have used diction which accepts forfeiture as a kind of penalty. When discussing the rulings of this Court we will explore whether this true nature of “forfeiture” is contradicted by anything we can find in Sections 37(1), 46 or 63. Even here we may reject the notion that a penalty or a punishment cannot be cast in the form of an absolute or no-fault liability but must be preceded by mens rea. The classical view that “no mens rea, no crime” has long ago been eroded and several laws in India and abroad, especially regarding economic crimes and departmental penalties, have created severe punishments even where the offences have been defined to exclude mens rea. Therefore, the contention that Section 37(1) fastens a heavy liability regardless of fault has no force in depriving the forfeiture of the character of penalty. xxx xxx xxx 28. Skilful submissions were made on the construction of the text of Section 37(1) of the Act to convince us that the sub-section itself made a distinction between penalty and forfeiture, suggesting that forfeiture was not regarded as a penalty. Side references to a few other sections were made to reinforce this thesis. The identity of the forfeit and the illegal collection was also urged by the assessee as a tell-tale circumstance to contend that it could not be a penalty. Moreover, the express penalty in Section 37(1)(a) had a ceiling while the additive forfeit was unlimited. A penny worth of penalty and a pound worth of forfeiture proved that the statute itself meant the latter to be not a penalty. From a verbal, syntactic and structural angle there is something to be said for this submission. But the heart of the matter is that the forfeit in the inartistically worded section is plainly punitive, not nakedly confiscatory. 29. The marginal note which, in ambiguous situations, may shed some light, treats the forfeit also as a penalty. From a verbal, syntactic and structural angle there is something to be said for this submission. But the heart of the matter is that the forfeit in the inartistically worded section is plainly punitive, not nakedly confiscatory. 29. The marginal note which, in ambiguous situations, may shed some light, treats the forfeit also as a penalty. Secondly, the words of a statute are purposeful symbols to be decoded straight-forwardly, not by unveiling the words behind the words. And so, when Section 37(1) expressly says that the wrongful collections shall be forfeited it means what it says. Forfeiture being penal, terminologically, it must bear the same sense here too. Moreover, so far as the Act of 1959 is concerned, there is no case of outwitting any anterior judicial verdict. The fact that mens rea is excluded and the penal forfeiture can be enormous are germane to legislative policy, not for judicial compassion. A limited penalty, without forfeiture, may prove illusory where the illegal collections run into millions. The inevitable conclusion is that the forfeiture in Section 37(1) is competent legislation. (underlining supplied by us to emphasise) 14. Kailasam, J. in his concurring judgment finding the provision of forfeiture to be penal in character also held so: 62. Mr Kaji next submitted that forfeiture if it is to be penalty would be confined to acts where there is a guilty mind. In other words he submitted that the penalty would be confined only to wilful acts of omission and commission in contravention of the provisions of the enactment. This plea cannot be accepted as penal consequences can be visited on acts which are committed with or without a guilty mind. For proper enforcement of various provisions of law it is common knowledge that absolute liability is imposed and acts without mens rea are made punishable. 63. Mr Kaji as well as Mr B. Sen, learned Counsel for some of the assessees, further brought to our notice cases in which by the application of the provisions of the sales tax enactment considerable hardship and injustice has been caused to the dealers. It was submitted that where the assessee innocently collected amounts on the impression that tax was leviable, the amounts so collected were forfeited while his obligation to the purchasers to refund the amounts continued. It was submitted that where the assessee innocently collected amounts on the impression that tax was leviable, the amounts so collected were forfeited while his obligation to the purchasers to refund the amounts continued. If the assessee by a mistake failed to collect tax, from the purchasers, tax was levied and collected from the assessee making him suffer in any event. When after a costly litigation, the assessee succeeded in establishing that sales tax cannot be collected on the railway freight on cement bags or inter-State sales, the Government promptly forfeited such amounts. We agree these are instances of hardship to the assessees and deserve Government attention. But for that reason the Courts cannot say that the act is beyond the legislative competence. The fact that in some cases the dealers are prejudiced would not affect the validity of the legislation which is the question we are called upon to decide. On a careful consideration of the points raised, I am satisfied that the provisions of Section 37(1) are within the competence of the State Legislature". 15. Section 46A of the KGST Act, according to us, has two limbs; one imposing penalty and the other a clause of forfeiture, which, later limb, does not bring with it the essential requirement of mens rea though penal in nature. Any collection by way of tax or purporting to be by way of tax in contravention of the provisions noticed therein, shall be liable to penalty not exceeding rupees five thousand which requires mens rea. The second limb speaks of such collection, either by way of tax or purporting to be by way of tax in contravention of the specified provisions, being liable for forfeiture to the Government. It is also pertinent that the collected amounts does not belong to the registered dealer. The basic foundation on which the clause of forfeiture is anchored upon would be the principle of unjust enrichment which would be the result, if the dealer who collected such tax from its consumers is permitted to retain the same. The dealer also cannot be given the responsibility of refund, since then there would be no mechanism to ensure such refund. 16. The measure of forfeiture though penal is also an enabling provision, the direct consequence of which is the consumer's right to seek refund by making an application in the prescribed form with the prescribed documents. The dealer also cannot be given the responsibility of refund, since then there would be no mechanism to ensure such refund. 16. The measure of forfeiture though penal is also an enabling provision, the direct consequence of which is the consumer's right to seek refund by making an application in the prescribed form with the prescribed documents. The distinction in the two limbs of Section 46A of the KGST Act is further accentuated by the fact that the provision speaks of an order issued by the Assessing Authority after giving the person from whom such forfeiture is made, an opportunity to show cause why penalty or forfeiture shall not be ordered. If forfeiture necessarily resulted in penalty, then the words employed would have been penalty and forfeiture, in conjunction. The legislature contemplated situations in which forfeiture would be a necessity, but the act of collection being not contumacious or in direct defiance of the provisions of law, in which event the registered dealer being absolved of such consequence of penalty. The case in point is one such instance. There could be the contrary situation also where there could be a penalty imposed but no forfeiture. A context in point would be where the assessee-dealer had collected tax as evidenced from the invoice; which the dealer later proves was refunded to the consumer. Then there is no scope for forfeiture but penalty could be imposed if there is found a deliberate contumacious conduct at the time of collection. 17. The Sales Tax Officer, Navgaon (supra) is on a totally different context. The assessee therein had purchased timber from the Forest Department in the auction held, which sale was assessed to tax. The auction purchaser had sold the timber locally and consigned it inter-State, which was sought to be assessed to tax by the Department. As to the inter-State sales, the assessee's contention that he had not made any sale to a purchaser outside the State and had merely transported the goods to its own stock-yard in the other State was accepted. On the local sales, it was found that only the first sale within the State was taxable under the State sales tax enactment. When the auction was conducted and the sale was made by the Forest Department, that Department was a dealer, liable to pay tax on its first sales. On the local sales, it was found that only the first sale within the State was taxable under the State sales tax enactment. When the auction was conducted and the sale was made by the Forest Department, that Department was a dealer, liable to pay tax on its first sales. The second sale made by the auction purchaser within the State was exempt. However, the State took a contention that there was an exemption notification subsequently brought out by the Government which exempted the sale made by the Forest Department even when the subject auction and sale occurred. It was held that since the first sale at the said point was validly taxed, the exemption granted subsequently, though having retrospective effect, could not result in creating a fresh levy on the second sales made by the assessee. In the present case, no such issue arises. Here we are only concerned with how the collected money by the registered dealer, on a levy understood to have been validly created, under the sales tax enactment at that point of time and also paid into the coffers of the State, should be dealt with. 18. We also notice the Punjab & Haryana High Court judgment in M/s.Idea Cellular Ltd. (supra) in identical circumstances and look at the declaration made on the effect of BSNL (supra). We also have to notice that therein the dealer was before the High Court with a petition under Article 226, seeking a writ of mandamus on identical circumstances as is available in this case. The essential distinction we wish to draw is that we are sitting in a statutorily conferred jurisdiction, which does not clothe us with any power to deal with the issue arising in an equitable manner especially when we are concerned only with the substantial questions of law arising from the order of the last fact finding authority, being the Sales Tax Appellate Tribunal. Even then, we extract the following paragraph from the judgment of the Punjab & Haryana in M/s.Idea Cellular Ltd. (supra): “A point raised by the State of Haryana, that we must deal with is that as the assessment orders persist and the statute does not empower the State to order refund, a direction to that effect cannot be issued under Article 226 of the Constitution of India. The submission disregards the fact that the levy, the collection and retention of VAT by the State of Haryana, is without authority of law. The levy and collection of tax, pursuant to assessment orders dated 22.2.2006, 26.03.2008 and 22.2.2006 (Annexure P-3A, P-3B and P-3C) not being relatable to a statutory power emanating from a Statute and, therefore, violative of Article 264 of the Constitution of India and a nullity. The mere fact that orders have been passed levying and collecting tax would not confer legitimacy, on the acts of the State of Haryana in seeking to retain the amount of tax collected and retained, without authority of law. The State of Haryana would have been justified in raising such a plea if the judgment in Bharat Sanchar Nigam Limited (supra) had been held to be prospective. A perusal of the aforesaid judgment reveals that the declaration of law is not prospective and like all general declarations of law, would be deemed to apply from the inception of the statute. The judgment having clearly held that VAT cannot be collected on activation of SIM cards, the assessment orders levying and collecting VAT, are from their inception a nullity and, therefore, the levy and collection of VAT is without authority of law and violative of Article 265 of the Constitution of India”. (underlining supplied by us to provide emphasis) 19. We agree with the Punjab & Haryana High Court that the levy and collection of sales tax in the context of the judgment in BSNL (supra) would be one without authority of law and violative of Article 265 of the Constitution of India. In this context, we only add a rider insofar as, if the declaration of law in BSNL (supra) was made prospective in its operation, then necessarily whatever paid over to the State as tax, would have to remain with the State. On the other hand, when subsequently the collection made by the registered dealer has been rendered illegal and without authority of law, in that context, sub-section (2) of Section 22 of the KGST Act squarely applies. At the time of collection in the subject assessment years it was perfectly valid by virtue of the declaration made by a Division Bench of this Court. At the time of collection in the subject assessment years it was perfectly valid by virtue of the declaration made by a Division Bench of this Court. However, on the subsequent decision of the Hon'ble Supreme Court in BSNL (supra), the levy has been rendered illegal and in such cases the collection falls foul of the sales tax enactment and falls within the mischief of sub-section (2) of Section 22; by virtue, or more appropriately, the rigour, of the declaration made in BSNL (supra). The collection made by the dealer becomes one purporting to be by way of tax on the sale of SIM Cards in respect of which he is not liable to pay tax. This again brings the act of collection within the framework of forfeiture as contemplated in Section 46A of the KGST Act, a necessary consequence by reason of the declaration of the Hon'ble Supreme Court. The claim for refund, if any, would subsist only in the consumer and it is the State who is competent to make such refund as per the procedure prescribed. There can be no refund to the assessee who admittedly has collected the amounts paid to the State as tax from its consumer on sale of SIM Cards. In the facts and circumstances, however, the first limb dealing with imposition of penalty, cannot apply and there could be no penalty levied. An order of forfeiture without an order of penalty, as we saw from the words employed in the provision, is eminently permissible. 20. In this context, we also notice another Constitution (a nine-Judge) Bench decision of the Hon'ble Supreme Court in Mafatlal Industries Ltd. v. Union of India [ (1997) 5 SCC 536 ]. The claims for refund, coming under the Excise Act, were classified to fall into three groups as (i) an unconstitutional levy, (ii) an illegal levy and (iii) a mistake of law. The levy of sales tax on SIM Cards effected by the State and sustained by a Division Bench of this Court, which was later found to be not permissible levy, for reason of there being no sale of goods, falls under the second category, being an illegal levy. The claim for refund is also based on the ground that there has been a misinterpretation/ misapplication/erroneous interpretation of the sales tax enactment and the transaction carried out. The claim for refund is also based on the ground that there has been a misinterpretation/ misapplication/erroneous interpretation of the sales tax enactment and the transaction carried out. The propositions as laid down in Mafatlal Industries Ltd. (supra) to the extent it is relevant to the present case from two judgments, one by B.P.Jeevan Reddy, J. and the other by K.S.Paripoornan, J. respectively are extracted hereunder: B.P.Jeevan Reddy, J. "(i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff — whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter — by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 — and of this Court under Article 32 — cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. xx xxx xxx (ii) Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. xx xxx xxx (ii) Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception: Where a person approaches the High Court or the Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be reopened on the basis of a decision on another person’s case; this is the ratio of the opinion of Hidayatullah, C.J. in Tilokchand Motichand (1969) 1 SCC 110 and we respectfully agree with it. xxx xxx xxx (iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition. The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched. (iv) It is not open to any person to make a refund claim on the basis of a decision of a court or tribunal rendered in the case of another person. He cannot also claim that the decision of the court/tribunal in another person’s case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment or levy has become final in his case, he cannot seek to reopen it nor can he claim refund without reopening such assessment/order on the ground of a decision in another person’s case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well-established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well-established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund. (para 108) xxx xxx xxx K.S.Paripoornan,J (A) If the excise duty paid by the assessee was ultimately passed on to the buyers or any other person, and that the assessee has suffered no loss or injury, the action for restitution based on Section 72 of the Contract Act, is unsustainable. (This is the legal position even under general law, without reference to Section 11-B of the Central Excises and Salt Act as amended by Act 40 of 1991.) (B) The decision in Kanhaiya Lal case ( AIR 1959 SC 135 ) and the cases following the same cannot be understood as laying down the law that even in cases the liability has been “passed on”, the assessee can maintain an action for restitution. If the decision in Kanhaiya Lal case and the cases following the said decision, enables such a person to claim refund (restitution), with great respect to the learned Judges, who rendered the above decisions, I express my dissent thereto. In this context, the observations in paras 329-331 — clause III shall also be borne in mind. (C) Article 265 should be read along with the Preamble and Articles 39(b) and (c) of the Constitution and so construed in cases where the assessee has passed on the liability to the consumer or third party, he is not entitled to restitution or refund. The fact that the levy is invalid need not automatically result in a direction for refund of all collections made in pursuance thereto". (para 346) (underlining by us for emphasis) 21. Though the two judgments differed on the exact remedy available to the assessee; whether it should be under the provisions of the taxing statute or an action by way of suit or under Article 226 of the Constitution, they concurred on the principles of refund which were anchored on the concept of unjust enrichment. The other concurring judgment, except on two counts, by A.M.Ahmadi,C.J. also spoke on similar lines with respect to actual refunds. The other concurring judgment, except on two counts, by A.M.Ahmadi,C.J. also spoke on similar lines with respect to actual refunds. When the liability to tax has been passed on, as permitted in the taxing statute, there is no question of automatic refund even if the levy is rendered invalid is the authoritative pronouncement. The sole dissent was by Suhas C.Sen, J., who found Section 11B and 11D of the Excise Act liable to be struck down, being a confiscatory device. As has been held in Mafatlal Industries Ltd. (supra) by the majority, there can be no claim of unjust enrichment by or of the State. The State exists for the people and what has been remitted to the coffers of the State, as collected from the consumers, who paid such tax on purchase of SIM Cards within the State, even if not individually claimed by such consumers, would essentially and eventually flow to the welfare of the persons residing within the State, who constitute the majority of the consumers also. 22. In this context, we also have to notice the two-Judge Bench decision of the Hon'ble Supreme Court immediately rendered after Mafatlal Industries Ltd. (supra), again on the question of refund, reported in Union of India v. Barmalt (India) Ltd. [ (1997) 5 SCC 748 ]. The questions raised therein were with respect to duty exemption for malt and malt extract as a food product and the refund of the excise duty paid by the manufacturer. The Revenue treated the products as not entitled to exemption, which decision was overturned by the Delhi High Court allowing the exemption claim. The Delhi High Court also overruled the Revenue's plea based on the theory of unjust enrichment, and directed refund. There were appeals filed before the Supreme Court, during the pendency of which the State granted refund to a large extent. When the appeals came up for hearing, there was a suggestion made by the assessee-respondent that if the entire refund is carried out, they would refund the duty to the purchasers. It was contended that the purchasers from the manufacturer were clearly identifiable, falling into two categories, being (i) manufacturers of beverages, like Bournvita and Horlicks etc. and (ii) breweries and distilleries engaged in manufacturing Indian Made Foreign Liquor. It was contended that the purchasers from the manufacturer were clearly identifiable, falling into two categories, being (i) manufacturers of beverages, like Bournvita and Horlicks etc. and (ii) breweries and distilleries engaged in manufacturing Indian Made Foreign Liquor. The proposal was in the context of the purchasers having claimed proforma credit on the excise duty paid by them; which was reversed by the Department consequent to the direction of the High Court to refund the excise duty. The proposal was also in mitigation of the hardship of the purchasers who having paid the duty was also dis-entitled to proforma credit. On refund being made to the assessee-manufacturers and the same being passed on to the purchasers, the latter would have no dispute on the reversal of the proforma credit, was the submission. However, the Hon'ble Supreme Court found that in many cases the refund order had become final and there were other manufacturers and purchasers who were not agreeable to such proposal. The measure suggested by the assessee-respondent was negated, finding that it would be an endless and a highly complicated exercise. The appeals were disposed of, directing the assessee-respondent to refund the entire amount refunded by the State:-“in view of the admitted fact that it has passed on the burden of duty to its purchasers” (sic -para 5). The proposal was accepted only in the case of one purchaser who was granted refund by the manufacturer who was also before the Hon'ble Supreme Court in whose case the reversal of credit was directed based on the refund having been received by the said purchaser. We quoted Barmalt (India) Ltd. (supra) specifically to emphasise the principle of unjust enrichment, which would squarely apply in the present case. 23. We would, hence, find that the direction of the Division Bench in Tata Teleservice Ltd. v. State of Kerala, the unreported judgment dated 13.02.2009 in W.P.(C) No.27445 of 2005 and connected cases, for forfeiture of the tax under Section 72 of the KVAT Act is perfectly in order and applicable also in the case of the identical levy, collection and payment to the State under the KGST Act. The forfeiture is perfectly valid as per Section 46A of the KGST Act, which is in pari materia with Section 72 of the KVAT Act. We answer the reference disagreeing with the doubt raised by another Division Bench on 16.02.2017 by the reference order. The forfeiture is perfectly valid as per Section 46A of the KGST Act, which is in pari materia with Section 72 of the KVAT Act. We answer the reference disagreeing with the doubt raised by another Division Bench on 16.02.2017 by the reference order. We are in perfect agreement with the direction of the Division Bench in the judgment dated 13.02.2009 in Tata Teleservices Ltd. (supra). The matters shall stand remanded to the Division Bench to consider the revisions.