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TMI Blog2004 (1) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... tary Act in terms whereof the inter se disputes between the parties vis-a-vis the claim of the assessee may be determined, they may approach the said forum. - Civil Appeal No. 976-979 of 2001, 53 of 2004, 943, 944 of 2001, Writ Petition (Civil) No. 195 of 1999, - - - Dated:- 7-1-2004 - KHARE V.N., SINHA S.B. AND LAKSHMANAN AR.DR. JJ. Senior Advocates: K. Parasaran, A.K. Ganguli, B. Sen and P.P. Rao for the parties. Other Advocates: A.T.M. Sampath, V. Balaji, Ms. T.S. Santhi, Ms. Aarthi Radhakrishnan, K.K. Mani, R.L. Ramani, Ms. Manika Pandey, K.V. Vijaykumar, Subramonium Prasad, Ms. Chitra Venkata-raman, R. Gopalakrishnan, S.N. Jha, Dilip Sinha, J.R. Das, Guntur Prabhakar, Sanjay R. Hegde, V.G. Pragasam, Ms. Kiran Bharadwaj, K.C. Kaushik, Rajiv Tyagi, Ms. Anil Katiyar, D.S. Mahra, Ravindra K. Adsure, Mukesh K. Giri, R.P. Wadhwani, B.S. Banthia, Naveen Sharma, Sakesh Kumar, Satish K. Agnihotri, Ms. Krishna Sarma, Ms. Asha G. Nair, V.K. Sidharthan, Ms. Hemantika Wahi, P.R. Ramasesh, R.S. Hegde, Chandra Prakash, Devish P., Ms. Savithri Pandey, P.P. Singh, B.B. Singh, M.N. Shroff, G. Prakash, N. Ganapathy, K. Ram Kumar, V. Krishnamurthy and V. Ramasubramaniam for the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rning the State in question. The stock of vehicles are transferred to the regional sales offices under the cover of stock transfer invoices, excise gate pass, and entrusted to the transport contractors for movement and delivery thereof whereupon transfer of such vehicles local sales tax are collected and paid by the different regional sales offices. The appellants herein upon transfer of such purported stocks of vehicles filled up forms in terms of section 6-A of the Central Act, the original whereof having been filed before the assessing authority of the State of Tamil Nadu, an enquiry was made and/or caused to be made pursuant whereto and in furtherance whereof the claim of the appellants to the effect that by reason of such transactions transfer of stock of goods had taken effect as contra-distinguished from inter-State sale was accepted. On or about November 29, 1990, the assessing authority upon completion of the order of original assessment under the Central Act allowed transfer of stocks of the motor vehicle chassis and other automobile parts to the branches stating: "The dealers have got 26 branch sales depots in other States. They have despatched their products-chassis, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad with section 9(2) of the Central Act was also imposed. Similar show cause notices were issued in relation to other assessment years also. 8.. A writ petition was filed by the appellants before the Madras High Court questioning the said orders, inter alia, contending that having regard to the provisions contained in section 6-A of the Central Act and further having regard to the fact that the appellants had paid tax to the other States the orders impugned therein were illegal. The States wherein the local sales tax had been paid in terms of the respective State Acts, namely, State of Kerala, Karnataka, Andhra Pradesh, Maharashtra and Gujarat, were impleaded as parties therein and they in turn also questioned the jurisdiction of the authorities of the State of Tamil Nadu to enquire about the transactions carried out by the appellants. A question was also raised that the Madras High Court had no jurisdiction to grant any relief touching the orders of assessment completed under the respective State law. Upholding the jurisdiction of Tamil Nadu authorities to reopen an assessment completed despite acceptance of declaration in form F, the Madras High Court by a judgment and order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (i) In the facts of the case, the question as to whether the power had been exercised validly or not did not call for consideration. If the assessing authority decided against the appellants, it would be open to the assessee to file appeal(s) directly before the Tribunal (in order to shorten the litigation and in the interest of justice). If and when the Tribunal decides against the appellants, it shall be open to the appellants to approach the Supreme Court. 9.. Having said so, this Court noticed the anomalous situation created by reason of the absence of a proper mechanism to adjudicate the question as to whether a particular transaction is an inter-State sale or a local sale in the presence of an assessee and the relevant States concerned and the need for the Parliament to intervene and provide for a suitable mechanism. 10.. The court appreciated the difficulties to be faced by the appellant having regard to the fact that it had paid tax to the other State Governments. This Court further noticed the contention of the appellant that the attitude adopted by the sales tax authorities in Tamil Nadu is not conducive of judicial conduct as they are predetermined to treat the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Ashok LeylandSee [1997] 105 STC 152 (SC). (1997) 9 SCC 10 was confined to the fact of that case. The special leave petitions having been filed by the assessees, this Court in Civil Appeal Nos. 14406- 14408 of 1997 by an order dated March 17, 1998 held: "As these special leave petitions and writ petitions involve important questions involving conflict between States' sales tax assessment proceedings and the Central sales tax assessment proceedings regarding the alleged very same sale transactions and as the problem is of a recurring nature and as a decision of a Bench of two Judges of this Court in Ashok Leyland Ltd. v. Union of India [1997] 105 STC 152, has to be applied with suitable modifications, if required, it would be appropriate that these matters are heard by a Bench of three learned Judges. In the meantime, the Union of India who is one of the respondents in these proceedings, may have to be heard with a view to suggest a modus operandi to resolve this conundrum. We, therefore, request the learned Attorney-General to appear for respondent No. 2, Union of India, for assisting the court in these proceedings. The office may obtain orders from honourable the Chief J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any ground whatsoever. Drawing our attention to the history of legislation as also the case laws leading to incorporation of article 286, enactment of the Central Act as also amendments made in article 269 of the Constitution of India, the learned counsel would submit that once by reason of the Central Act in terms of the determination made by the statutory authorities thereunder, certain transactions by creating a legal fiction were kept outside the purview of the Central Act, the assessing authorities cannot exercise their purported jurisdiction of reopening an order of assessment under section 16(2) of the State Act or section 9(2) of the Central Act. Formulation of principles for determining when a sale or purchase of consignment of goods takes place in the course of inter-State trade or commerce being within the exclusive domain of the Parliament having regard to clause (3) of article 269 of the Constitution of India, Mr. Parasaran, would contend; statutory authorities created under the State Act could not exercise any jurisdiction contrary to or inconsistent therewith. 14.. The learned counsel would submit that the word "determination" signifies expression of opinion which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 97 of List I of the Seventh Schedule to the Constitution, a presumption must be drawn that the purpose thereof was to take away the taxing power of the State and, thus, in relation to such transactions the State cannot levy any tax. It is evident that order of such nature passed by the assessing authorities of the State of Tamil Nadu would not only affect the assessees but also other States as well and once it is held that the burden of proof has been discharged by the assessee, such transactions must be held to have taken place outside the purview of the Central Act. 20.. Mr. A.K. Ganguli, the learned Senior Counsel appearing on behalf of the respondents, per contra, would contend that the question as regard the conclusiveness or otherwise of an order under sub- section (2) of section 6-A of the Act shall operate as res judicata, keeping in view the fact that the said issue has already been determined by this Court in Ashok Leyland See [1997] 105 STC 152 (SC). (1997) 9 SCC 10 and, thus, binds the parties herein. The learned counsel would contend that section 6-A of the Act cannot be given a higher status than the State Act or section 9(2) of the Central Act inasmuch as an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed by the assessing authority in terms whereof the dealer is required to file the prescribed return relating to his turnover submitted in the prescribed manner within the period prescribed therefor. The Act provides for self-assessment subject of course to the exceptions contained in clause (b) of sub-section (1) of section 12. The errors contained in the return can, however, be corrected. A dealer making self-assessment is required to make true and correct statements of fact. In the event, the dealer does not file a return within the prescribed period and the return is found to be incorrect; in addition to the tax assessed, the assessing authority may direct it to pay the amount of penalty levied in terms of sub-section (3) of section 12. 23.. Section 16 provides for assessment of escaped turnover which reads thus: "16. Assessment of escaped turnover.-(1)(a) Where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, the assessing authority may, subject to the provisions of sub-section (2), at any time within a period of five years from the date of order of the final assessment by the assessing authority determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efined in the Sale of Goods Act, 1930 or (ii) an agent for handling of goods or documents of title relating to goods, or (iii) an agent for the collection or the payment of the sale price of goods or as a guarantor for such collection or payment, and every local branch or office in a State of a firm registered outside that State or a company or other body corporate, the principal office or headquarters whereof is outside that State, shall be deemed to be a dealer for the purposes of this Act. Explanation 2. -A Government which, whether or not in the course of business, buys, sells, supplies or distributes, goods, directly or otherwise, for cash or for deferred payment or for commission, remuneration or other valuable consideration, shall, except in relation to any sale, supply or distribution of surplus, unserviceable or old stores or materials or waste products or obsolete or discarded, machinery or parts or accessories thereof, be deemed to be a dealer for the purposes of this Act; (g) 'sale', with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another for cash or deferred payment or for any other valuable c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seller or the purchaser) under the sales tax law of the appropriate State if that sale had taken place inside that State. (2) Notwithstanding anything contained in sub-section (1) or sub- section (1-A), where a sale of any goods in the course of inter-State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale during such movement effected by a transfer of documents of title to such goods,- (a) to the Government, or (b) to a registered dealer other than the Government, if the goods are of the description referred to in sub-section (3) of section 8, shall be exempt from tax under this Act. 6-A. Burden of proof, etc., in case of transfer of goods claimed otherwise than by way of sale.-(1) Where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 6, the tax shall be levied and collected- (a) where such subsequent sale has been effected by a registered dealer, in the State from which the registered dealer obtained or, as the case may be, could have obtained, the form prescribed for the purposes of clause (a) of sub-section (4) of section 8 in connection with the purchase of such goods; and (b) where such subsequent sale has been effected by an unregistered dealer, in the State from which such subsequent sale has been effected. (2) Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, reassess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, reassess, collect and enforce payment of tax, including any interest or penalty, payable by a dealer under this Act as if the tax or interest or penalty payable by such a dealer under this Act is a tax or interest or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... best of my knowledge and belief. (Signature) (Name of the person signing the declaration) *(Status of the person signing the declaration in relation to the transferee) *(Status of the person signing the declaration in relation to the transferor) Date....................... *Strike out whichever is not applicable. [ Note .-To be furnished to the assessing authority in accordance with the rules framed under section 13(4)(e).)]" 27.. Having noticed the relevant provisions of the statute, we may notice the following constitutional provisions: "245. Extent of laws made by Parliament and by the Legislatures of States.-(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. 268.. Duties levied by the Union but collected and appropriated by the States.-(1) Such stamp duties and such duties of excise on medicinal and toilet preparations as are mentioned in the Union List s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For purposes of sub-clause (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State. (2) Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on sale or purchase of any goods where such sale or purchase takes place in the course of inter-State trade or commerce: Provided that the President may by order direct that any tax on the sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of this Constitution shall, notwithstanding that the imposition of such tax is contrary to the provisions of this clause continue to be levied until thirty first day of March, 1951. (3) No law made by the Legislature of a State imposing, or authorising the imposition of a tax on the sale or purchase of any such goods as have been decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Parliament by law. A further provision is proposed in article 269 expressly empowering Parliament to formulate by law principles for determining when a sale or purchase of goods takes place in the course of inter-State trade or commerce. It is proposed in clause 4 to omit from clause (1) of article 286 the explanation which has given rise to a great deal of legal controversy and practical difficulty. In view of the centralisation of inter- State sales tax proposed in clause (2) of this Bill, clause (2) of article 286 in its present form will cease to be appropriate. In its place it is proposed to insert a provision empowering Parliament to formulate principles for determining when a sale or purchase of goods takes place (a) outside a State, or (b) in the course of import of the goods into the territory of India, or (c) in the course of export of the goods out of the territory of India. It is further proposed to replace clause (3) of article 286 by a new clause on the lines recommended by the Taxation Enquiry Commission. Under this revised clause Parliament will have the power to declare by law the goods which are of special importance in inter-State trade or commerce an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to whether the Central sales tax or the local sales tax would become payable. The States, where manufacturing of goods takes place in case involving such nature of transaction, presumably would like to invoke the provisions of the Central sales tax as in terms of article 270 of the Constitution of India despite the fact that the Central sales tax is payable to the Central Government, the amount is invariably passed on to the State concerned. On the other hand, the purchaser when it is a public sector undertaking, would like to see that the purchase and sale takes place within the State so as to entitle the concerned State to collect the local sales tax, a rate therefor would normally be higher. There, thus, exists conflict in interest of the States particularly having regard to the financial crunches faced by them. 33.. Having regard to the Statement of Objects and Reasons of the Central Sales Tax Act vis-a-vis the recommendations made by the law commission, as referred to hereinbefore, it would appear that the Parliament with a view to bring in expediency in such a matter so that the dispute can be determined as expeditiously as possible amended section 6-A. Section 6 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny is situated. 35.. When the dealer furnishes the original of form F to its assessing authority, an enquiry is required to be held. Such enquiry is held by the assessing authority himself. He may pass an order on such declaration before the assessment or along with the assessment. Once an order in terms of sub-section (2) of section 6-A of the Central Act is passed, the transactions involved therein would go out of the purview of the Central Act. In other words, in relation to such transactions, a finding is arrived at that they are not subjected to the provisions of the Central Sales Tax Act. It is not in dispute there- under no appeal is provided thereagainst. 36.. In Chunni Lal Parshadi Lal v. Commissioner of Sales Tax, U.P. See [1986] 62 STC 112 SC at page 118. (1986) 2 SCC 501. "It means that a sale of any of the goods specified in sub- section (1) to a registered dealer who has purchased them or to any unregistered dealer, shall for the purpose of this section, be deemed to be a sale to the consumer unless the purchasing dealer purchases the said goods for resale in the same condition. It merely strengthens the provisions of sub-section (2) of section 3-AA, i.e., unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a legal fiction has been created for the purpose of the said Act to the effect that transaction has occasioned otherwise than as a result of sale. On an analysis of the aforementioned provisions, therefore, the following propositions of law emerge: (i) The initial burden of proof is on the dealer to show that the movement has occasioned by reason of transfer of such goods which is otherwise than by reason of sale. The assessee may file a declaration. On a declaration so filed an inquiry is to be made by the assessing authority for the purpose of passing an order on arriving at a satisfaction that movement of goods has occasioned otherwise than as a result of sale. (ii) Whenever such an order is passed, a legal fiction is created. Legal fiction, as is well-known, must be given its full effect. 38.. In the rules of evidence, there exist several presumptions. These presumptions may be rebuttable or irrebuttable. Irrebuttable presumptions are referred to as conclusive presumptions as they stand as conclusive proof of certain facts and are open to challenge only on very meagre grounds. Under the Indian Evidence Act, sections 41, 112 and 133 deal with conclusive presumptions. Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l mind in appreciating the existence of facts with this difference that while the former was open to rebuttal, the latter was placed beyond rebuttal. So considered a rule of irrebuttable presumption could not be said to fall outside the law of evidence. That such a rule might in some cases lead to hardship and injustice was not a relevant consideration in judging its constitutional validity. The real test whether a rule of irrebuttable presumption was one of evidence was inherent relevancy. If the fact from the proof of which the presumption was required to be drawn was inherently relevant in proving it, the rule was one of evidence, no matter whether the presumption prescribed was rebuttable or irrebuttable. The expression 'rules of evidence' in section 9(2) must be construed in the light of its legislative history. Ever since the passing of the Evidence Act a conclusive presumption has been a part of the law of evidence. It is well-settled that the scope of power to legislate on a topic had to be determined by the denotation of that topic obtaining in legislative practice." However, in the minority opinion it was observed: "A rule of conclusive presumption made with a v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 76 STC 211 (Ker), the law is stated in the following terms: "......A plain reading of section 6A(2) of the Central Sales Tax Act points out that in cases where the dealer exercises the option of furnishing the declaration (F forms), the only further requirement is that the assessing authority should be satisfied, after making such enquiry, as he may deem necessary, that the particulars contained in the declaration furnished by the dealer are 'true'. The scope or frontiers of enquiry, by the assessing authority under section 6A(2) of the Central Sales Tax Act is limited to this extent, namely, to verify whether the particulars contained in the declaration (F forms) furnished by the dealer are 'true'. It means, the assessing authority can conduct an enquiry to find out whether the particulars in the declaration furnished are correct, or dependable, or in accord with facts or accurate or genuine. That alone is the scope of the enquiry contemplated by section 6A(2) of the Act. On the conclusion of such an enquiry, he should record a definite finding, one way or the other. As to what should be the nature of the enquiry, that can be conducted by the assessing authority under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds involved in the execution of a works contract. The absence of any amendment in the definition of "sale" contained in section 2(g) of the Central Sales Tax Act, 1956 so as to include transfer of property in goods involved in execution of a works contract, therefore, does not in any way affect the applicability of sections 3, 4 and 5 and sections 14 and 15 of the Central Sales Tax Act to such transfer. 51.. In State of Bombay v. Pandurang AIR 1953 SC 244 at para 5 it was held- "When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion." 52.. A legal fiction can be utilised in several ways wherein the word "deemed" is used. However, the mere use of the word "deemed" is not in itself sufficient to set up a legal fiction as was held in Consolidated Coffee Ltd. v. Coffee Board [1980] 46 STC 164 (SC) at page 174. (1980) 2 SCC 358 at para 11, stating that, "the word 'deemed' is used a great deal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may also be applied in a given case. 56.. While construing a statute, the object of the Act must be taken into consideration. [See Killick Nixon Ltd. v. Deputy Commissioner of Income-tax (2003) 1 SCC 144]. 57.. Section 6-A of the Act although provides for a burden of proof, the same has to be read in the context of section 6 of the said Act. Section 6 provides for liability to pay tax on inter-State sales. Any transaction which does not fall within the definition of "sale" would not be exigible to tax, the burden whereof would evidently be on the assessee. We have noticed hereinbefore that whereas prior to the amendment in sub-section (1) of section 6-A the dealer had an option of filing a declaration in form F; after such amendment, he does not have such option, insofar as in terms of the amended provision, if the dealer fails and/or neglects to file such a declaration, the transaction would be deemed to be an inter-State sale. It is to be noticed that for the aforementioned purpose also, the Parliament advisedly used the expression "deemed". If the expression "deemed" is interpreted differently, an incongruity would ensue. 58.. In absence of any indication that the Parl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been a mere error of judgment. It also cannot be reopened under another statute, for examples, the Sales Tax Act of the State concerned, when the order had been made under the Central Act. Section 9(2) of the Act is subject to the other provisions of the Act which would include sub-section (2) of section 6-A of the Act. "Subject to" is an expression whereby limitation is expressed. The order is conclusive for all purposes. It can only be reopened on a small set of grounds such as fraud, misrepresentation, collusion, etc. 62.. It is also to be borne in mind that no presumption when movement of goods has taken place in the course of inter-State sales may be raised in the case of standard goods but the same is not conclusive. It is only one of the factors which is required to be taken into consideration along with others. In a case, however, where the purchaser places order on the manufacturer for manufacturing goods which would be as per his specifications, a presumption that agreement to sell has been entered into may be raised. 63.. The purport and object of section 6-A of this Act need not detain us for long as the same has been considered at some details recently in 20th C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on" is defined as: "'Thereupon' has at least two meanings and may mean either immediately or without delay or lapse of time. It has been defined as meaning upon this or that and is used for the purpose of referring to a cause or condition precedent. It is also frequently used to denote a following or consequence of preceding events and when considered in statutory interpretation it is often construed to refer to a succession of events in the order or sequence of their performance rather than as an adverb of time. State ex rel. Warnick v. Wilson 178 p. 2d 277, 282; 162 Kan. 507." 69.. The expression "For the purpose of this Act", unless the context otherwise requires would mean "all the purposes" thereof. 70.. In H.L. Sud., Income-tax Officer, Companies Circle 1(1), Bombay v. Tata Engineering and Locomotive Co. Ltd. AIR 1969 SC 319 at 319, this Court held: "The expression 'for all purposes', used in section 43 only indicates that when an appointment is made for a particular assessment year it is stood for all purposes as far as that assessment is concerned, i.e., for all purposes for imposing tax liability, determining the quantum of the liability and for recovering it. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any regard to the provision of law. If the section requires the authority to pass an order on inquiry or on being satisfied of existence or non-existence of a fact then the duty cast is higher and an order which is passed without due regard to duty to investigate then the order may be mindless..." Furthermore, the expression "subject to" must be given effect to. 74.. In Black's Law Dictionary, Fifth Edition at page 1278 the expression "subject to" has been defined as under: "Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided, answerable for. Homan v. Employers Reinsurance Corp. 345 Mo. 650, 136 S.W. 2d 289, 302." 75.. The word "determination" must also be given its full effect to, which pre-supposes application of mind and expression of the conclusion. It connotes the official determination and not a mere opinion or finding. 76.. In Law Lexicon by P. Ramanatha Aiyar, Second Edition, it is stated: "Determination or order. The expression 'determination' signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... private export house to enable the latter to export those goods in compliance with existing contracts or orders are regarded as inextricably connected with the export of the goods and hence earmarked for conferral of the benefit of the exemption. But here again, 'existing contract' with whom is not clarified. In other words, on this crucial point the statement is silent and does not throw light on whether the existing contract should be with a foreign buyer or will include any agreement with a local party containing a covenant to export. Therefore, the question will again depend upon proper construction and, as we have said above, in the matter of construction the two aspects discussed earlier show that by necessary implication 'the agreement' spoken of by section 5(3) refers to the agreement with a foreign buyer." 79.. In terms of clause (3) of article 269, inter-State sale is contrasted from local sale. 80.. An order passed by the statutory authority who has jurisdiction therefor, the same would amount to a part of substantive and not procedural law. In addition to this there is no provision for appeal. Thus, it is only in the limited cases of fraud, mis-representation, etc., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction of a particular case. Mistake of fact in relation to jurisdiction is an error of jurisdictional fact. No statutory authority or Tribunal can assume jurisdiction in respect of subject-matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or Tribunal exercises the jurisdiction then the order is vitiated. Error of jurisdictional fact renders the order ultra vires and bad..." 86.. In South India Corporation (P) Ltd. v. Secretary, Board of Revenue AIR 1964 SC 207, this Court has held that special provisions shall prevail over the general provisions. 87.. It is further trite that an administrative authority or a quasi-judicial authority while adjudicating upon a lis is obligated to pose and answer a right question so as to enable it to arrive at a conclusion as to whether he has jurisdiction in the matter or not. By reason of a legal fiction which becomes attracted in terms of deter- mination made thereunder, the provisions of the Central Act shall stand excluded. 88.. In A.V. Fernandez v. State of Kerala [1957] 8 STC 561 at 574; [1957] 1 SCR 837, this Court observed: "There is a broad distinction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office, thereafter to the buyer through the branch office. The branch office merely acted as a conduit through which the goods passed on their way to the buyer. It is, however, relevant to note that the court noticed: "...It would have been a different matter if the particular goods had been despatched by the registered office at Hyderabad to the branch office outside the State for sale in the open market and without reference to any order placed by the buyer. In such a case if the goods are purchased from the branch office, it is not a sale under which the goods commenced their movement from Hyderabad. It is a sale where the goods moved merely from the branch office to the buyer..." 91.. The purpose of verification of the declaration made in form F, therefore, is as to whether the branch office acted merely as a conduit or the transaction took place independent to the agreement to sell entered into by and between the buyer and the registered office or the office of the company situated outside the State. The said decision therefore, does not run counter to our reading of the said provision. Furthermore, the question which has been raised before us had not been raised therein. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a writ petition (No. 58908 of 1976) under article 226 of the Constitution in the High Court for impugning the order of his compulsory retirement passed by the Chief Justice, he had served, in accordance with rule 5 of the Andhra Pradesh High Court (Original Side) Rules, notice on the Chief Justice and the Government Pleader, and in consequence, at the preliminary hearing of the writ petition before the division Bench, the Government Pleader appeared on behalf of all the respondents including the Chief Justice, and raised a preliminary objection that the writ petition was not maintainable in view of clause (6) of the Andhra Pradesh Administrative Tribunal Order made by the President under article 371-D which had taken away that jurisdiction of the High Court and vested the same in Administrative Tribunal. This objection was accepted by the High Court, and as a result, the writ petition was dismissed in limine. In these circumstances- proceeds the argument-the appellant is now precluded on principles of res judicata and estoppel from taking up the position, that the Tribunal's order is without jurisdiction. But, when Shri Sarathy's attention was invited to the fact that no notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns into an Act which, ten years before, were incorporated in an Ordinance and were found to be unconstitutional in an erroneous judgment of the High Court and before the error could be corrected in appeal the Ordinance itself lapsed." CONCLUSION: For the reasons stated hereinbefore, we are of the opinion that the appellants would be entitled to move the High Court for ventilating their grievances. However, if the Central Government creates a new forum, it would be open to them to approach the same. 102.. We may now consider the fact of the connected matters: In W.P. (C) No. 195 of 1999 merely a show cause notice has been issued in relation to three assessment years beginning from 1989-1990. This writ petition covers the period 1989-1990 to 1995-1996. In relation to period 1990-1991, 1991-1992 and 1992-1993 reopening proceedings had been initiated. A fresh cause of action has arisen in relation to the other assessment years. 103.. Having regard to the fact that the question as to whether the finding arrived at by the STAT would attract the exceptions carved out hereinbefore mainly would revolve round the question as to whether determination in terms of sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent; certain documents were recovered from a perusal whereof it transpired that the goods were moved against the prior orders and as such they are not entitled to exemption. The department contended that it a Coal India Limited which had placed orders for supply of explosives to its various subsidiary companies in North India and its projects at Asansol, Dhanbad, Ranchi, Nagpur and Bilaspur at specified rates and in that view of the matter the transactions constituted inter-State sales. According to the appellant, however, order placed by M/s. Coal India Limited, is not an order intending to purchase but merely a standing offer. The objection of the appellant was overruled up to the appellate authority. The matter went up to the Tamil Nadu Sales Tax Tribunal, Coimbatore, wherein it was held that the goods being unascertainable ones must be held to be general and standard goods and not tailormade to the special requirements of any customers. It came to the conclusion that the transactions were only branch transfers and were not liable to sales tax. It further held that the transactions having taken place outside the State of Tamil Nadu and the transactions having been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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