(No. 2387

#### Phoenix Metal Cap Co., Claimant, vs. State of Illinois, Respondent.

Opinion filed October 9, 1934.

West & Eckhabt, for claimant.

Otto Kebneb, Attorney General; John Kassebman, Assistant Attorney General, for respondent.

Mb. Justice Yantis

delivered the opinion of the court:

Claimant seeks to recover on a credit memorandum issued by the Department of Finance, but not paid from appropriation, the sum of One Hundred Sixty-seven and 28/100 Dollars ($167.28) paid as Retailers Occupation Tax to the Department of Finance of the State of Illinois.

There seems to be no disagreement of facts. Under report from the Department of Finance, it appears that claimant was engaged in producing and selling metal caps, which are affixed to the tops of glass containers in which fruits, vegetables and other tangible personal property are contained and ultimately sold to users or consumers. Under *200the rulings of the Department of Finance, such sales constitute sales for re-sale under Special Bule No. 1 of the Bules and Begulations issued by the Department of Finance in relation to the Betailers Occupation Tax Act.

On August 22, 1933, claimant paid the sum of $167.28 to the Department, under protest. On September 13th, the Department of Finance advised claimant that the sales in question were within the exception of Special Bule No. 1, and the claimant was not liable for such tax. Claimant thereafter, in October, filed its claim for credit for the amount paid under protest, i. e., $167.28. The Department, being legally unable to make a refund, issued a credit memorandum, evidencing claimant’s right to said amount, and referred claimant to the Court • of Claims for adjustment. The claim was filed herein on March 22, 1934. It appearing from the undisputed facts that the Department of Finance recognizes the legality of said claim, and that a refund should be made, it is therefore ordered that an award be entered for claimant in the sum of $167.28. Further that upon payment thereof, the original credit memorandum, No. 783, Registered No. 86095, issued April 14, 1934, to the Phoenix Metal Cap Company, Inc., by the Department of Finance, be surrendered to said Department for cancellation.