Tax liability exists regardless of collection, and notifications prevent refunds unless explicitly authorized, upholding statutes and public interest.

1. Denial of the claim for refund, in respect of exemption from the liability to pay purchase tax with retrospective effect is the point involved.

2. The petitioner, an assessee on the rolls of the first respondent, is a dealer engaged in the business connected with the commodity 'rubber'. By virtue of the relevant provisions of law, tax was payable on purchase turnover of rubber and the petitioner was remitting the same accordingly, in connection with the manufacture of centrifuged latex and crumb rubber.

3. While so, the Government, in exercise of the power conferred under S.10 of the Kerala General Sales Tax Act, 1963 (KGST Act in short) issued Ext. P2 notification bearing SRO No. 695/2003, finding it necessary in the public interest so to do and exempted the manufacturers of centrifuged latex and crumb rubber from payment of tax under the KGST Act, 1963 on the purchase turnover of rubber in any form used for the manufacture of centrifuged latex and crumb rubber. It was also stated that the said notification shall be deemed to have been in force during the period from 01/04/1988 to 09/10/2001. It was further stipulated that, 'tax, if any, already paid shall not be refunded'. The exemption granted as per the said notification was further extended from 10/10/2001 to 31/03/2004, as per Ext. P3 notification bearing SRO Ho. 316 of 2005 dated 31/03/2005. In the said notification, it was stipulated that, 'tax collected shall be paid over to Government immediately and tax if any, already paid shall not be refunded'.

4. As a matter of fact, in respect of the assessment year 2001 - '02, the petitioner had already remitted purchase tax amounting to a total sum of Rs.1,09,495/-. But in view of the subsequent notifications as aforesaid, providing exemption retrospectively w.e.f 01/04/1988 to 31/03/2004, the petitioner claimed refund at the time of assessment. The request was declined and the assessment was completed as per Ext. P1 assessment order dated 17/11/2005, which is under challenge in this writ petition.

5. The case of the petitioner is that, the petitioner had not collected any tax, though he had effected the payment. As such, the petitioner claims to have refund, more so, in view of the clarification issued by the Government in the subsequent notification i.e. Ext. P3, to the effect that uncollected tax was given exemption. As such, the stipulation that the tax if any already paid, shall not be refunded will be attracted, only if such tax is already collected, resulting in any unlawful enrichment. It is also stated that, the State, having no right to collect the tax for the period in question, by virtue of the exemption granted as per Exts. P2 and P3 notifications, is not authorised to have the amount retained at their hands; more so, in view of the mandate under Art.265 of the Constitution of India, which stipulates that, no tax shall be collected without the authority of law. So also, it is contended that S.10 of the KGST Act, confers the power under the Government, only to provide exemption or to reduce tax liability and as such, the notifications issued in exercise of the said power cannot be made as a tool indirectly, to levy / collect any tax. It is pointed out that, alternate remedy by way of appeal is not effective, as the departmental authorities are always bound by the contents of the notifications, which hence necessitates interference of this Court, as sought for in this Writ Petition.

6. The first respondent has filed a counter - affidavit, pointing out that, the liability to pay tax is very much there under the Statute and it was only by virtue of the exemption given as per Exts. P2 and P3 notifications, that the petitioner could put forth the cla