JUDGMENT : SATHISH NINAN, J. 1....... (i) Is Tax collected and kept by an assessee before it became due to Government in terms of Section 49A of the Kerala General Sales Tax Act, 1963 (KGST Act) and Section 79A of the Kerala Value Added Tax (KVAT Act) attachable by the Civil Court in execution of a decree? (ii) Is there any conflict/inconsistency between Section 49A of the KGST Act and Section 79A of the KVAT Act with, Section 60 read with Order XXI Rule 46 and 46A of the Code of Civil Procedure, 1908(CPC)? In case of conflict, which is to prevail? (iii) In the circumstances of the case, is the assessee who deposited tax before an execution court pursuant to garnishee order under Order XXI Rule 46 and Rule 46A of CPC, entitled to discharge of pro-rata tax payable? 2. The above are the broad questions that arise in these proceedings. 3. The assessment of tax in relation to the erstwhile Cochin Refinery, and the Bharat Petroleum Corporation Ltd. (BPCL) into which it was merged and amalgamated in the year 2006 (hereinafter referred to as “the assessee”) is the subject matter involved. 4. In execution of various land acquisition awards against the State, execution courts issued order of attachment/prohibitory orders and garnishee orders against the assessee. The orders related to the tax collected by the assessee (KGST, KVAT and Central Sales Tax) but which had not become due to the Government. In compliance with the garnishee orders, the assessee deposited such amounts before the execution court. However, thereafter the State issued assessment orders followed by penalty orders, alleging nonpayment of the tax due from the assessee. 5. The assessee claims that, in terms of Order XXI Rule 46F CPC, compliance with the garnishee orders amounts to valid discharge of the tax liability as against the State, to such extent. 6. The State would on the other hand contend that, Sections 49A and 79A of the KGST Act and KVAT Act respectively, prohibited attachment of the tax collected and kept with the assessee before it became due to the Government. Hence the assessee could not have made payment of such amounts before the execution court. Such deposits if any made are in contravention of the KGST Act and KVAT Act and hence cannot be reckoned/recognised in the assessment orders and in reckoning the tax paid, is the contention. 7. Hence the assessee could not have made payment of such amounts before the execution court. Such deposits if any made are in contravention of the KGST Act and KVAT Act and hence cannot be reckoned/recognised in the assessment orders and in reckoning the tax paid, is the contention. 7. We have heard the learned Senior Counsel Sri.K.I.Mayankutty Mather and learned counsel Sri. Raja Kannan on behalf of the assessee, Sri. Mohammed Rafiq, the learned Special Government Pleader (Taxes) on behalf of the State, and Sri. P.R.Ajith Kumar on behalf of the Central Government. 8. According to the learned Senior Counsel for the assessee, a debt is attachable under CPC. Sections 49A and 79A of the KGST Act and KVAT Act respectively, prohibits such attachment. Thus the said provisions in the State Acts namely, the KGST and KVAT are in direct conflict with the Central Act viz. CPC. In case of such conflict, in terms of Articles 246 and 254 of the Constitution of India, the Central Act has to prevail. Hence, Sections 49A and 79A of the KGST Act and KVAT Act respectively, are liable to be declared as unconstitutional, is the argument. 9. Alternatively it is contended that, even if the said provisions in the State Acts are held to be valid, the assessee had made payments into the execution court in compliance with the garnishee orders issued by the court. The payments were not gratuitous. Hence they are liable to be adjusted towards the tax payable by the assessee, and the assessee is to be given a valid discharge to such extent. The learned Senior Counsel relied on Section 70 of the Indian Contract Act in support of the argument. It is further contended that, even if Section 70 of the Indian Contract Act as such is held to be inapplicable, on the facts of these cases, equity warrants direction for such appropriation, it is urged. 10. The learned Senior Government Pleader would on the other hand contend that, Tax is not a “debt” which could be subjected to attachment under the CPC. Hence there is no inconsistency/contradiction between the Central Act and the State Acts in question. 10. The learned Senior Government Pleader would on the other hand contend that, Tax is not a “debt” which could be subjected to attachment under the CPC. Hence there is no inconsistency/contradiction between the Central Act and the State Acts in question. Even assuming that there is contradiction, going by the doctrine of pith and substance, the KGST Act and KVAT Act are the subject matter which falls within Entry 54 in the State list (List II) in the VII Schedule to the Constitution and CPC falls within Entry 13 in the Concurrent list (List III). Even if there is slight encroachment, the State Acts will prevail, it is argued. 11. It is further contended that, to enable the assessee to claim the benefit of Section 70 of the Contract Act, the payments must have been “lawfully” made. When the payments were made in contravention of the statutory provisions, it cannot be claimed that the payments were “lawfully” made. Under such circumstances, there could not be any claim for equity also, it is contended. 12. The learned Central Government counsel would argue that, going by the pith and substance rule, the provisions in the KGST and KVAT Acts which are in issue are well within the legislative competence of the State. He would also submit that, there has to be an equitable adjustment of the amounts paid by the assessee pursuant to the garnishee orders of the execution court. 13. We proceed to analyse the rival contentions. 14. Section 49A of the KGST Act reads thus: “Bar against attachment in certain cases - Notwithstanding anything contained in any other law in force or in any judgment, decree or order of any court, no court or any other authority shall pass any order attaching any amount from any person out of the tax collected by such person under the Act and kept with him before it became due to Government.” 15. Section 79A of the KVAT Act is identical and it reads thus: “Bar against attachment in certain cases - Notwithstanding anything contained in any other law in force or in any judgment, decree or order of any court, no court or any other authority shall pass any order attaching any amount from any person, out of the tax collected by such person under the Act and kept with him before it became due to Government.” 16. Section 60 CPC enumerates the properties liable to attachment and sale in execution of a decree. Order XXI Rule 46 provides for the mode of effecting such attachment. Order XXI Rule 46 A to I provides for garnishee proceedings i.e., when a third party holds a debt due to the judgment debtor, the execution court can attach such debt and require such person to pay into court such portion of the debt which may be sufficient to satisfy the decree under execution. It is by virtue of such orders that the assessee had made payments of the tax amounts in the execution court. 17. The first question to be considered is, whether “tax” falls within the scope of the word “debt” as occurring under Section 60 CPC. Section 60 CPC describes the properties liable to attachment. The proviso thereto enumerates the properties exempted from attachment. The proviso does not mention tax. The Section, excluding the proviso, which is presently relevant, reads thus: “60. Property liable to attachment and sale in execution of decree: (1) The following property is liable to attachment, and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, banknotes, cheques, blls of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf.” Going by the Section, “debts” are liable to attachment. A careful reading of the Section indicates that, the properties described therein as liable to attachment and sale in execution of a decree are, properties over which the judgment debtor has a power of assignment. Attachment puts a restraint on the power of alienation. In execution of a decree, through the mode of attachment and sale, what the execution court does is to assign the property of the judgment debtor through the process of court. It is an involuntary transfer. There cannot be transfer of any property over which a person does not have a right to transfer. 18. In execution of a decree, through the mode of attachment and sale, what the execution court does is to assign the property of the judgment debtor through the process of court. It is an involuntary transfer. There cannot be transfer of any property over which a person does not have a right to transfer. 18. With regard to the properties which could be subjected to attachment, the High Court of Delhi in Belrex India Ltd. v. Singhal Electric Co. AIR 1983 Del 430 held that, to be subjected to attachment, the property must be one over which the judgment debtor has a disposing power. The court held thus: “The properties mentioned in Section 60(1) of the Code of Civil Procedure are liable to be attached and sold in execution of a decree i.e. a decree for the recovery of money. The sub-section also provides that all other saleable property belonging to the judgment debtor or over which he has a disposing power for his own benefit may be attached. Thus it means that all properties whether movable over which the judgment debtor has disposing power and which is capable of being sold may be attached. The property in order to be attachable under this sub-section must be (i) 'saleable property' and (ii) capable of being transferred. Property which is not capable of being transferred cannot be attached......Whether a property is attachable or not one has to refer to sub-section (1) of Section 60 of the Code. According to sub-section (1) property belonging to the judgment debtor over which he has a disposing power and which is saleable may be attached in execution of the decree for recovery of money.” 19. In Union Bank of India v. Mittersain Rupchand, AIR 1995 Bom. 371 , it was held: “Thus the property which is not capable of being transferred cannot be attached.” The view that it is only an alienable right that could be subjected to attachment under Section 60 CPC has also been held in Champarun Sugar Co. Ltd. & Anr. v. Haridas Mundhra & Ors. AIR 1966 Cal. 134 and Salakshi v. Lakshmayee, (1908) ILR 31 Mad 500. 20. The properties mentioned in Section 60, as liable to attachment and sale are, properties over which the judgment debtor has a power of disposal. Therefore, a “debt” falling under S.60 CPC must also be one that is assignable. 21. v. Haridas Mundhra & Ors. AIR 1966 Cal. 134 and Salakshi v. Lakshmayee, (1908) ILR 31 Mad 500. 20. The properties mentioned in Section 60, as liable to attachment and sale are, properties over which the judgment debtor has a power of disposal. Therefore, a “debt” falling under S.60 CPC must also be one that is assignable. 21. Thus understanding the purport of “debt” under S.60 CPC, we proceed to consider whether “tax” falls within the same. 22. Article 265 of the Constitution of India provides that, no tax shall be collected save under authority of law. Imposition and collection of taxes is a sovereign authority. Tax is a compulsory payment and is not dependent on the will of the assessee. 23. In the American and English Encyclopedia of Law (Second Edition), Tax is defined thus: “Taxes are generally defined as burdens or charges imposed by legislative authority on persons or property to raise money for public purposes, or, more briefly, “an imposition for the supply of the public treasury.” It is stated to include all burdens, charges and imposition by virtue of the taxing power, with the object of raising money for public purposes. The following narrations in the Encyclopedia are seemed relevant: “A tax, in its essential characteristic, is almost universally held not to be a debt or in the nature of a debt” or “Taxes are not assignable as debts” and “Taxes are not liable to set-off.” 24. The Encyclopedia refers to Whiteaker v. Haley, Oregon 139 which held “a tax is not subject to attachment.” Further, referring to Apperson v. Memphis, Flipp. (U.S.) 363; Crabtree v. madden, (C.C.A.) 54 Fed. Rep. 426] it has been stated, “Taxes are neither the subject of nor liable to set-off.” Referring to Merrill v. Welsher, 50 Iowa 61 and Sully v. Drennan, 113 U.S. 287 it has been stated, “The rule that taxes are not assignable seems to involve the proposition that such an important power of government as the taxing power cannot be delegated to individuals.” 25. In American Jurisprudence, Volume 51, it has been stated that, “A tax is a forced charge, imposition, or contribution; it operates in invitum, and is in no way dependent upon the will or contractual assent, express or implied, of the person taxed..” It further states, “Taxes are not “debts”, in the ordinary meaning of that word. In American Jurisprudence, Volume 51, it has been stated that, “A tax is a forced charge, imposition, or contribution; it operates in invitum, and is in no way dependent upon the will or contractual assent, express or implied, of the person taxed..” It further states, “Taxes are not “debts”, in the ordinary meaning of that word. It has been stated “a tax does not establish the relation of debtor and creditor between the taxpayer and the state or municipality.... it is not liable to set-off.” “A tax differs materially and essentially from a debt.” It has been explained that, while debt is founded on contract, tax is not. Referring to the distinguishing character of tax it has been observed, “the foundation of the obligation to pay taxes is not the privileges enjoyed or the protection given to a citizen by government, although the payment of taxes gives a right to protection; both are enjoyed as well by those members of a state who do not, because they are not able to, pay taxes, as by those who are able to and do pay them.... While the duty or obligation to pay taxes by the individual is founded in his participation in the benefits arising from their expenditure, this does not mean that no man's property can be taxed unless some benefit to him personally can be pointed out.” The power of taxation is described thus: “The power of taxation is inherent in sovereignty as an incident or attribute thereof, being essential to the existence of independent Government.” 26. In Corpus Juris Secundum, it stated, “Since the obligation to pay taxes does not rest on any contract express or implied, or on the consent of the tax payer, a tax is not a debt in the ordinary sense of that word.” It has been further stated, “since the obligation to pay taxes is not contractual it follows that taxes are not assignable as ordinary debts, unless it is expressly so provided.” 27. In Words and Phrases, Permanent Edition, taxation is stated to be, “that inherent power in Government to raise funds with which to promote general welfare and protection of citizens.” Describing Tax it has been stated, “a tax is neither a debt nor a contractual obligation so as to authorise enforcement thereof by creditors bill.” It has been further stated that a tax is a forced burden or contribution imposed by sovereign right for the support of the Government, the administration of law and to execute the various functions the sovereign is called on to perform. It is a sovereign right. It is stated, “taxes are legally neither debts nor contractual obligations, but exactions in strictest sense of words.” Tax is described as an incident of sovereignty; “a tax is an exaction due to the Government in its sovereign capacity, and is an impose levied by the sovereign authority to raise monies for the support of the Government, or for some special purpose within the domain of the Government.” 28. The characteristics of tax has been dealt with exhaustively in the nine judges bench decision of the Apex Court in, Mineral Area Development Authority and Anr. v. Steel Authority of India and Anr. 2024 SCC Online SC 1796. It was held thus: “101. Taxation is a mode of raising revenue to fund public expenditure. The power of taxation is an essential and inherent attribute of sovereignty...... 102. Taxes are monetary burdens or charges imposed by legislative power upon persons, or property to raise revenues. The government needs requisite funds to discharge its primary governmental functions. No responsible government can function and achieve its welfare objectives without levying and collecting taxes. The objects to be taxed can be taxed by the legislature according to the exigencies or its needs so long as they happen to be within the legislative competence of the legislature. Although the power of taxation is pervasive and an incidence of sovereignty, it is subject to well-defined constitutional limitations. 103. In Matthews v. Chicory Marketing Board, Latham CJ defined “tax” as a “compulsory exaction of money by a public authority for public purposes, enforceable by law and....not a payment for services rendered.” In Commissioner, Hindu Religious Endowment, Madras v. Sri Lakshmindra Thirta Swamiar of Sri. 103. In Matthews v. Chicory Marketing Board, Latham CJ defined “tax” as a “compulsory exaction of money by a public authority for public purposes, enforceable by law and....not a payment for services rendered.” In Commissioner, Hindu Religious Endowment, Madras v. Sri Lakshmindra Thirta Swamiar of Sri. Shirur Mutt, this Court relied on the above elucidation to enumerate the following essential characteristics of a tax: “44.[...] It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the taxpayer's consent and the payment is enforced by law. The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected forms part of the public revenues of the State. As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of quid pro quo between the taxpayer and the public authority. Another feature of taxation is that as it is a part of the common burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay.” 104. A tax has the following essential characteristics: (i) it is a compulsory exaction of money by a public authority; (ii) it is imposed under statutory power without the consent of the tax payer; (iii) the demand is enforceable by law; (iv) it is an imposition made for public purposes to meet the general expenses of the state without reference to any special benefit to be conferred on the payer of the tax and (v) it is part of the common burden. 108. The expression “tax” under Article 265 includes every kind of impost in the form of a compulsory exaction. An impost is a compulsory exaction. The power to levy an impost is an incident of sovereignty. A liability arising out of contract cannot be termed as an impost or tax. A consideration paid under a contract to the State Government for acquiring exclusive privileges and rights with respect to a particular activity cannot be termed as an “impost” or “tax” under Article 366 (28).” 29. The power to levy an impost is an incident of sovereignty. A liability arising out of contract cannot be termed as an impost or tax. A consideration paid under a contract to the State Government for acquiring exclusive privileges and rights with respect to a particular activity cannot be termed as an “impost” or “tax” under Article 366 (28).” 29. Thus, the authorities are in unison that, imposition of tax is a sovereign right and the collection of tax is in exercise of the sovereign power. So also, the authorities are uniform to the effect that tax is not a debt in its common parlance and also that it is not assignable. 30. The nature and characteristic of a “tax” being as noted above, and its imposition and collection being a sovereign power, is not assignable except as authorised under Statue. May be, once the tax is collected and forms part of the State exchequer it ceases to have the characteristic of tax. However, till then, it retains the characteristic of tax and it cannot be assigned. 31. Thus, while a debt under Section 60 CPC is assignable, a tax is not assignable. Attachment prohibits transfer. Prohibition of transfer can only be against an assignable right. There could not be attachment of an unassignable right. Tax being unassignable, is not liable to attachment. Tax does not fall within the purview of “debt” under Section 60 CPC, and we hold so. 32. Having concluded that a tax is not a debt liable to attachment under CPC, the contention of the assessee that, there is conflict between Section 49A of KGST Act and Section 79A of the KVAT Act on the one hand with Section 60 read with Order XXI Rule 46 and 46A CPC on the other, does not arise at all. 33. Elaborate arguments were addressed by the learned senior counsel on the issue of repugnancy between relevant provisions of the KGST Act and KVAT Act with the CPC to persuade us to hold that the concerned provisions of the State Acts are repugnant to the Central Act and has to yield to the Central Act. 34. 33. Elaborate arguments were addressed by the learned senior counsel on the issue of repugnancy between relevant provisions of the KGST Act and KVAT Act with the CPC to persuade us to hold that the concerned provisions of the State Acts are repugnant to the Central Act and has to yield to the Central Act. 34. As to how the courts are to deal with a situation where there is conflict between an enactment of the Parliament and of the State legislature, the Apex Court in Mineral Area Development Authority (supra), held thus: “...However, how should courts deal with a situation where two legislations, enacted by Parliament and State legislature in pursuance of their respective legislative powers, appear to conflict with each other? The answer lies in Article 246 itself. 34. Article 246 incorporates the principle of federal supremacy. In Hoechst Pharmaceuticals (supra), this Court held that the words “notwithstanding anything contained in clauses (2) and (3)” in Article 246(1) and the words “subject to clauses (1) and (2)” in Article 246(3) embody that principle. The principle postulates that in case of an inevitable conflict between Union and State powers, the Union's power of legislation over a subject enumerated in List I shall prevail over the State powers of legislation over a subject enumerated in List II and III. However, it is also settled that this principle cannot be resorted to unless there is an irreconcilable direct conflict between the entries in the Union and State Lists. Such a conflict must be an actual one and not a mere seeming conflict between the two entries in two lists. 35. Hoechst Pharmaceuticals (supra) laid down the following principles to resolve any direct conflict between the entries in List I and List II: (i) in case of seeming conflict, the two entries should be read together without giving a narrow and restricted reading to either of them; (ii) an attempt should be made to see whether the two entries can be reconciled so as to avoid a conflict of jurisdiction and (iii) no question of conflict arises between two Lists if the impugned legislation in pith and substance appears to fall exclusively under one list and the encroachment upon the other list is incidental.” 35. As noticed earlier, the KGST Act and KVAT Act are legislations made by the State under List II and the CPC is enacted by the Parliament on the subject under List III. In Mineral Area Development Authority (supra) it was held by the Apex Court that: “The issue of repugnancy arises only when both the legislators are competent to legislate on the subject with respect to List III.” The Court referred to the judgments in C.H. Tika Ramji & Ors. v. State of Uttar Pradesh & Ors. AIR 1956 SC 676 and State of Maharashtra v. Bharath Shanthi Lal Shah & Ors. 2008 (13) SCC 5 . However, since we have already held that there is no conflict between the provisions, the said question does not arise. 36. Section 49A of KGST Act and Section 79A of the KVAT Act are unambiguous that, the Court shall not order attachment of, tax collected but has not become due. The provisions are clear that they create a prohibition on attachment. On the effect of the provisions, there is no contention to the contrary. As to when tax can be said to be “due” under the KGST Act, has been held by this Court in Chandramani Traders v. State of Kerala, (2008) 16 VST 294 (Ker). This Court held that tax becomes due only on the filing of the return of self assessment or when an order of assessment is made by the authority. This Court relied on the judgment of the Apex Court in State of Rajasthan v. Ghasilal, (1965) 16 STC 318 (SC). Therein the Apex Court held that tax can be said to be due under two circumstances; firstly, when it is ascertained by the assessing authority and secondly, on the filing of the returns by the assessee. This Court relied on the judgment of the Apex Court in State of Rajasthan v. Ghasilal, (1965) 16 STC 318 (SC). Therein the Apex Court held that tax can be said to be due under two circumstances; firstly, when it is ascertained by the assessing authority and secondly, on the filing of the returns by the assessee. The Apex Court held: “But till the tax payable is ascertained by the assessing authority under Section 10, or by the assessee under Section 7(2), no tax can be said to be due within Section 16(1)(b) of the Act, for till then there is only liability to be assessed to tax.” This Court had also relied on the judgment of the Apex Court in Maruti Wire Industries Pvt. Ltd. v. Sales Tax Officer, (2001) 2 KLT 100 (SC), wherein the Apex Court held that the liability of the assessee to pay sales tax would arise on return of turn over being filed on self assessment or on an order of assessment being made. 37. Next we proceed to deal with the contention of the assessee, for equitable adjustment of the tax liability based on Section 70 of the Contract Act. Section 70 of the Contract Act reads thus: “Obligation of person enjoying benefit of non-gratuitous act - Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.” The Section has its roots in equity. It embodies the equitable principle of unjust enrichment and restitution. The Section has three ingredients (i) the act has been lawfully done; (ii) it was not a gratuitous act and (iii) the benefit of the same was enjoyed by such other person. If the above conditions are satisfied then the person on whose account it was done is liable to compensate the former. 38. Though Section 49A of the KGST Act and Section 79A of the KVAT Act prohibited attachment of tax collected but not become due, the execution court issued attachment orders followed by garnishee orders requiring the assessee to pay such amounts in Court. Order XXI Rule 46A(1) enables the garnishee to appear before the Court and show cause why such deposit should not be ordered. Order XXI Rule 46A(1) enables the garnishee to appear before the Court and show cause why such deposit should not be ordered. On such objections being raised, Order XXI Rule 46C requires the Court to try the question. The records do not reveal that the assessee had filed any objections in the execution proceedings with reference to the provisions of the KGST Act and KVAT Act. 39. It is the case of the assessee that, the provisions of the State Acts which prohibited attachment were specifically brought to the notice of the Court, but were brushed aside and the attachment orders were passed without the same being reflected in the orders. It is pointed out that the assessee had duly brought to the notice of the authorities such illegal orders being passed by the execution court and required the judgment debtors to bring to the notice of the Court that the attachment orders passed are illegal. Ext.P7 in W.P. (C) No. 21626/2013 is a communication dated 18.06.2013 from the Office of the Deputy Commissioner, Commercial Taxes, Ernakulam to the District Collector, Ernakulam therein it is stated thus: “The legal advisors of the BPCL had taken up the matter in the Sub-courts, Ernakulam specifically pointing out the new provisions in the Kerala Finance Act, and objecting the attachment orders passed subsequent to the amendment of the statute. However, the Court had orally directed them that the Garnishee had no locus-standi to object to the prohibitory/attachment orders. The Court, pointed out that if any objections had to be raised, it was for the respective defendants/judgment debtors to do so. Further it is not open for the Garnishee to contest or challenge the matter as the garnishee.” It is evident therefrom that the assessee had raised their objections before the Court against the prohibitory and garnishee orders. The communication further suggest that no proper action was taken from the side of the State which was the judgment debtor in the execution proceedings to alert the Court of the prohibition. The relevant portion reads thus: “.....But the Govt. pleaders has not put this to the notice of the courts which resulted in the continued attachment of the tax due. Even though M/s Bharat Petroleum Corporation Ltd. has put this to the notice of the District Collector, Ernakulam, by letter dated 07/01/2008, it is seen that no instruction was given to the Govt. pleaders has not put this to the notice of the courts which resulted in the continued attachment of the tax due. Even though M/s Bharat Petroleum Corporation Ltd. has put this to the notice of the District Collector, Ernakulam, by letter dated 07/01/2008, it is seen that no instruction was given to the Govt. pleaders.” The said communication further acknowledges that the assessee is bound by orders of the Court and that positive action is required from the State. The communication states thus: “Since the money is being kept by BPCL only due to an order from a competent court and since our department is not a party on these cases, the positive action must come from the Revenue Department. Hence, these revenue authorities should take urgent steps either to file a review before the same sub-courts or to file appeals before the District Court, so that the orders may be stayed. In this regard, we have informed earlier that, a review petition can be filed through the Deputy Collector (LA) before the Sub courts or to file appeal before the District Courts or OP before the High Court of Kerala to get the order of Sub court stayed.” 40. Incidentally it is to be noticed that, in the background of the execution court issuing various garnishee orders of the like nature against the assessee, attaching tax collected but not become due, the State had approached this Court in W.P. (C) No. 10605/2010, seeking a declaration that the tax is not liable for attachment in the light of the State Acts. The writ petition was dismissed by this Court as per Ext.P5 judgment, relegating the State to the execution Courts to bring to its notice the relevant statutory provisions. 41. It is seen that pursuant thereto the State, who is the judgment debtor in the execution proceedings, objected to the attachment and garnishee orders in the light of the relevant provisions of the KGST Act and KVAT Act. However, the execution court after considering the objections, overruled the same and ordered attachment of the tax. Two such orders passed in EP 330/2012 and EP 343/2011 are under challenge by the State in W.P. (C) Nos.25268/2013 and 29667/2013 respectively. The above indicates that the execution court was of the view that the bar under Section 49A of the KGST Act and Section 79A of the KVAT Act are not attracted. 42. Two such orders passed in EP 330/2012 and EP 343/2011 are under challenge by the State in W.P. (C) Nos.25268/2013 and 29667/2013 respectively. The above indicates that the execution court was of the view that the bar under Section 49A of the KGST Act and Section 79A of the KVAT Act are not attracted. 42. In the above circumstances it is beyond cavil that, the assessee had made the deposits in compliance with judicial orders and under the colour of legal authority. The deposits were made as ordered by the Court. In the circumstances it cannot be said that the deposits were not lawfully made. 43. The deposits were not made gratuitously. The State enjoyed the benefit of such deposits through discharge of its debt in the execution proceedings. However, can it be said that the State had voluntarily accepted the benefit? The State had no option either to accept the payment or to reject it. It was an involuntary and imposed payment. In such cases will Section 70 of the Contract Act apply? The Apex Court in State of West Bengal v. B.K. Mondal & Sons, AIR 1962 SC 779 has held that such payments will not attract Section 70. It was held: “Section 70 is not intended to entertain claims for compensation made by persons who officiously interfere with the affairs of another or who impose on others services not desired by them......It is thus clear that when a thing is delivered or done by one person it must be open to the other person to reject it. Therefore, the acceptance and enjoyment of the thing delivered or done which is the basis for the claim for compensation under S.70 must be voluntary.” This Court had in Mariam & Ors v. Aarmeswaran Nambooripad & Ors. 1964 KLT 588 held: “It is not the law under Section 70, that a benefit can be thrust on a person, to make him liable for reimbursement.” Here the payment was not voluntarily accepted by the State but under compulsion and under the process of Court in execution of a decree. Hence it cannot be said that S.70 would strictly apply.” 44. So also, though Section 70 of the Contract Act provides for restoration of the benefit or for payment of compensation, the situation obtaining does not call for such action. The decree holders in the Execution Petitions have withdrawn the amounts. Hence it cannot be said that S.70 would strictly apply.” 44. So also, though Section 70 of the Contract Act provides for restoration of the benefit or for payment of compensation, the situation obtaining does not call for such action. The decree holders in the Execution Petitions have withdrawn the amounts. Practically there cannot be any restoration or an order for compensation. 45. Order XXI Rule 46F provides that, compliance with the garnishee orders amounts to full discharge of the liability of the garnishee. 46. We are left with a situation where, payments were made by the assessee under orders of the Court, the orders being in violation of the prohibition under the statutes, and the State though not voluntarily, enjoyed its benefit. Equity demands that the payments/deposits made by the assessee before the execution court as garnishee be adjusted towards the Tax for the relevant assessment periods. We are of the opinion that these are fit cases where the principle underlying the latin maxim “actus curiae neminem gravabit” (an act of the court shall prejudice no man) and the law of equity need to be applied. The plenary power of this Court under Article 226 of the Constitution of India could be exercised to further the cause of justice, of course without violating the law. 47. In Jang Singh v. Brij Lal and Ors. AIR 1966 SC 1631 the Apex Court held: “There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: “Actus curiae neminem gravabit.” 48. In Kerala State Electricity Board v. MRF Ltd. 1996 (1) SCC 597 the Apex Court held: “...it has been held by the Privy Council that one of the first and highest duties of all the Court is to take care that act of the Court does not cause injury to any of the suitors. There is no manner of doubt it is an imperative duty of the court to ensure that the party to the lis does not suffer any unmerited hardship on account of an order passed by the Court. There is no manner of doubt it is an imperative duty of the court to ensure that the party to the lis does not suffer any unmerited hardship on account of an order passed by the Court. The principle of restitution as enunciated by the Privy Council in Rodger's case (Supra) has been followed by the Privy Council in later decisions and such principle being in conformity to justice and fair play be followed.” 49. In South Eastern Coalfields Ltd. v. State of M.P & Ors. 2003 (8) SCC 648 , the Apex Court held: “That no one shall suffer by an act of the Court is not a rule confined to an erroneous act of the Court; the ‘act of court’ embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law.” 50. The Apex Court in Kavita Balsara Hygiene Products Ltd. 1994 (5) SCC 380 observed, “The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers, where the case did not strictly fall within the ambit of S.144.” 51. In Rohtas Industries Ltd. and Anr. v. Rohtas Industries Staff Union and Ors. 1976 (2) SCC 82 the Apex Court held: “The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person-even a private individual-and be available for any (other) purpose-even one for which another remedy may exist.” 52. In Lt. Col. Khajoor Singh v. Union of India and Anr. AIR 1961 SC 532 , the Apex Court held: “The power of the High Court under Article 226 of the Constitution is of the widest amplitude and it is not confined only to issuing of writs in the nature of habeas corpus, etc., for it can also issue directions or orders against any person or authority, including in appropriate cases any Government.” 53. The Apex Court in P.J. Irani v. State of Madras & Anr. AIR 1961 SC 731 held: “... The Apex Court in P.J. Irani v. State of Madras & Anr. AIR 1961 SC 731 held: “... the power of the High Court under Art. 226 of the Constitution is not limited to the issue of writs falling under particular groupings, such as the certiorari, mandamus, etc., as these writs have been understood in England, but the power is general to issue any direction to the authorities, viz., for enforcement of fundamental rights as well as for other purposes.” 54. In Veerappa Pillai v. Raman & Raman Ltd. and Ors. AIR 1952 SC 192 the Apex Court held: “Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the fact of the record.” 55. In Shobha Goplakrishnan v. State of Kerala, 2019 (1) KLT 801 a Division Bench of this Court explaining the powers under Article 226 of the Constitution of India observed that the jurisdiction springs up when no remedy is provided under any statute. 56. In Joshy Joseph v. State of Kerala and Ors. 2018 (5) KHC 397 this Court while holding a party is entitled to refund of excess stamp duty paid in the absence of provisions in the Stamp Act and Rules for refund held: “Even if there are no provisions in the Statute book envisage refund of stamp duty and fee paid as in the instant case, this Court in exercise of the constitutional and plenary powers conferred under Article 226 of the Constitution of India, could pass orders for such refund, as in Ext.P1 judgment. The jurisprudential foundation for such powers is on the premise that the State authority cannot enjoy the benefits of unjust enrichment....” 57. On the facts and law as noticed above, we are of the definite opinion that the plenary powers of this Court under Article 226 of the Constitution of India is to be exercised. The tax remitted by the assessee consequent on the orders of the execution court is liable to be 58. On the facts and law as noticed above, we are of the definite opinion that the plenary powers of this Court under Article 226 of the Constitution of India is to be exercised. The tax remitted by the assessee consequent on the orders of the execution court is liable to be 58. W.P. (C) No. 9438/2014 is one filed by the State for a direction to the assessee to remit an amount of Rs. 17,30,92,372/- with interest since 2000-01 towards the outstanding tax liability. This amount is excluding the amounts deposited under the garnishee orders. According to the assessee, pursuant to the restraint order passed by the execution court, an amount of Rs. 18 crores payable as tax is kept with them. Though they have always been ready to pay the said amount towards the tax liability, the restraint order by the execution court prohibited them from doing so. Since there was no further direction by the execution court to deposit this amount, it was not paid into court. The assessee expresses their willingness to make payment of the said amount towards the tax liability, on orders of this Court. However, they may not be made liable for any interest upon the same, the non-payment being not voluntary, deliberate or wilful, it is contended. 59. We have already noticed that the non-payment of the tax by the assessee was consequent on the orders of the execution court and for no fault of them. We have already held that such payments made before the execution court pursuant to the garnishee orders are liable to be adjusted towards the tax due. We have also held that there could not be any order of attachment over the tax collected in the light of Sections 49A of the KGST Act and Section 79 of the KVAT Act. Hence the amount of Rs. 18 crores lying with the assessee and due as tax shall be paid by them towards their tax liability forthwith. 60. The KGST and KVAT Acts stipulate for payment of interest and penalty for default. Since the non-payment was not due to the fault of the assessee but in the peculiar circumstances obtaining, we do not think it appropriate to cast liability for penalty. 60. The KGST and KVAT Acts stipulate for payment of interest and penalty for default. Since the non-payment was not due to the fault of the assessee but in the peculiar circumstances obtaining, we do not think it appropriate to cast liability for penalty. Penalty is not for technical breach or for bona-fide default, but can be levied only on established contumacious, dishonest or fraudulent conduct [See: Hindustan Steel Limited v. State of Orissa, (1970) 25 STC 211 , P.D. Sudhi v. Intelligence Officer, Agricultural Income Tax and Sales Tax, Mattancherry, (1992) 85 STC 337 ]. However, with regard to the liability for interest, since the assessee has enjoyed the benefit of the said amount till now, they are necessarily liable to pay interest upon the same. Section 31(5) of the KVAT Act stipulates simple interest at 12% per annum on the defaulted amount. Section 23(3)(a) of the KGST Act provides for 12% interest for the first three months and thereafter at 24%. Taking note of the above it is deemed appropriate to order that the assessee shall be liable to pay interest at 12% per annum, till the date of payment. The payment is to be made within 30 days from the date of judgment. In the event of default in such payment, the consequences under the KGST and KVAT Acts will follow from such date. It is ordered accordingly. 61. W.P. (C) Nos. 29667/2013 and 25268/2013 are filed by the State challenging orders of attachment passed by the execution court. We have already held that execution court could not have ordered attachment of the tax collected. Hence the order impugned therein will stand quashed. 62. W.P. (C) No. 21626/2013 from which W.A. No. 388/2014 arises is filed by the assessee, challenging the validity of Section 49A of the KGST Act and Section 79A of the KVAT Act as beyond the legislative competence they being in conflict with Section 60 of the Code of Civil procedure. The assessee has also sought for a further relief to give due credit to the garnishee payments effected of the tax amounts collected under the KGST, KVAT and CST Acts. We have already held that there is no conflict between the provisions of the State Acts and the Central Act. We have also directed that the garnishee payments effected by the assessee are liable to be given due credit to. We have already held that there is no conflict between the provisions of the State Acts and the Central Act. We have also directed that the garnishee payments effected by the assessee are liable to be given due credit to. The details of the garnishee payments and its appropriation are to be worked out between the parties in the light of the directions in this judgment. 63. The writ appeal and the writ petitions are disposed of as above.