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TMI Blog1983 (1) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... nese ore. Export of manganese ore has to be effected only through M.M.T.C. The Supreme Court has held in Murarilal Sarawagi v. State of Andhra Pradesh [1977] 39 STC 294 (SC) that M.M.T.C. is not a mere canalising agency. It held that in every case of export of manganese ore the sale must be to the M.M.T.C., and that it is the M.M.T.C., which in its turn sells the same to the foreign buyer, though as a fact there may be a direct agreement between the Indian seller and the foreign buyer. Certain quantities of manganese ore was available with one R.B.S.S. Durga Prasad, a party at Tumsar within the State of Maharashtra. This quantity of manganese ore was shipped through Visakhapatnam Port in the name of and on the account of the petitioner in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessing authority again concluded that the petitioner was the last purchaser within the State. On appeal, the Appellate Assistant Commissioner confirmed this finding. The Appellate Assistant Commissioner emphasised the fact that in spite of his repeated demands and requests, the petitioner failed to produce the relevant material. On further appeal the Tribunal considered the entire material which was placed before it and came to the conclusion that the petitioner was the last purchaser within the State. The contention of Sri K. Srinivasa Murthy, the learned counsel for the petitioner, is that this conclusion of the Tribunal is not supported by any evidence and is therefore arbitrary. So far as the contention of the petitioner tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner is a dealer at Delhi. The mere purchase of the manganese ore by the petitioner from the Tumsar party does in no manner suggest that the purchase is within the State of Andhra Pradesh. Merely because the goods passed through this State or were exported through Visakhapatnam Port in Andhra Pradesh, it does not follow, nor can it be presumed therefrom, that the purchase by the petitioner was within the State of Andhra Pradesh. Similarly the fact that the material was exported by the petitioner is also not indicative or presumptive of the fact that he purchased it within the State of Andhra Pradesh. The order of the Tribunal makes it clear that substantial reliance was placed by it upon the contents of the letter dated 11th Novem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o his case and that for this reason the petitioner suppressed the same. We are unable to agree with this reasoning. It is no doubt true that a dealer or an assessee, who is called upon to produce a particular document or material in his possession or custody, is bound to do so, and that on his failure to so produce, an adverse inference can be drawn by the assessing authority. But at the same time it must be remembered that the ultimate burden of proving the taxability is upon the department. In other words it is for the department to show that the taxable event has taken place and in this case the taxable event is the last purchase, within the State, by the petitioner. Now this finding cannot be arrived at merely on the basis of failure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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