Allahabad High Court
Indian Wood Products Co. Ltd. vs State Of U.P. And 3 Others on 18 March, 2021
Bench: Sunita Agarwal, Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT TAX No. - 206 of 2021 Petitioner :- Indian Wood Products Co. Ltd. Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rahul Agarwal Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Deepak Verma,J.
Heard Sri Rahul Agarwal, learned counsel for the petitioner, learned counsel for the State-respondents and perused the record.
The petitioner herein seeks a writ of mandamus commanding the respondents to refund the transit fee deposited for the period from 03.05.2016 to 23.10.2017 along with interest computed from 03.05.2016, in compliance of the judgment and order dated 15.9.2017 of the Apex Court in the State of Uttarakhand and others Vs. Kumaon Stone Crusher (2018) 14 SCC 537.
It is contended that the petitioner is engaged in the business of manufacturing and selling of Kattha, Kattha Lugdi, Cutch Lugdi and Khair Wood. As per the 3rd amendment of the Uttar Pradesh Transit of Timber and Other Forest Produce Rule, 1978, the rate for issuance of transit fee was revised and increased by 4th amendment vide Notification No.3460/14-2-2010/343 (L)/20, dated 20.10.2010. The rate was further revised and increased by Notification No.312/14-2/2011-343 (L)/2011, dated 04.06.2011. Both the amendments were subject matter of challenge in a writ petition which was decided by this Court on 11.11.2011 in the reported case as NTPC Ltd. and Another Vs. State of U.P. and others (2011) SCC 1789. This Court had quashed the 4th and 5th amendments of Uttar Pradesh Transit of Timber and Other Forest Produce Rule, 1978, thereby restoring the rate determined by the third amendment in the rules.
The matter went to the Apex Court. Under the interim directions issued by the Apex Court, the revised transit fee was deposited by the appellant/ the petitioner herein. However, the controversy had been set at rest by the judgment and order dated 15.9.2017 passed by the Apex Court, wherein while upholding the judgment of this Court quashing the 4th and 5th amendment for revision of the transit fee, following directions had been issued:
"197. This Court directed that State shall be free to recover transit fee within the State of U.P. at the rate stipulated in the fifth amendment to Rule 5.
198. The Court also held that such recovery shall remain subject to the ultimate outcome of present cases pending in this Court. With further condition that in the event of writ petitioners/private parties succeeding in their, the amount deposited/recovered from them be refunded with interest @ 9%.
199. We having upheld the judgment of the High Court dated 11.11.2011 striking down Fourth and Fifth Amendment Rules further steps needs to be taken as per interim direction dated 26.4.2016 which came into the effect from 01.05.2016. It is made clear that in so far as prior to 01.05.2016 recovery was permitted as per Third Amendment Rules which has been upheld, there is no question of considering any claim of refund of any transit fee prior to 01.05.2016. The transit fee is an indirect tax and the State is entitled to consider the claim of refund provided it has not passed on to the consumer which may result into unjust enrichment. Thus we permit the State to consider any claim of refund of transit fee on the condition that State shall permit refund only after being satisfied that there is no passing of the transit fee to the ultimate consumer and refund may not result in unjust enrichment."
Pursuant thereto, the petitioner had approached the Divisional Forest Officer, Social Forestry Division by moving application dated 23.10.2017. Various communications were exchanged with the Divisional forest officer as also the Principal Chief Conservator of Forest (U.P.) Lucknow. A meeting was also held but final decision with regard to the refund of transit fee deposited by the petitioner in compliance of the order of the Apex Court, has not been taken till date.
Looking to the prayer in the writ petition and noticing above facts, without entering into merits of the case, the writ petition is being disposed of with the direction to the Principal Chief Conservator of Forest (U.P.) Lucknow to take an expeditious decision on the request of the petitioner for refund of the transit fee strictly in accordance with the direction of the Apex Court in the judgment and order dated 15.9.2017, as extracted above, preferably, within a period of four weeks from the date of receipt of copy of this order, under due intimation to the petitioner.
Order Date :- 18.3.2021 Meenu