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TMI Blog1983 (4) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... uty Commissioner, however, revised the order holding that certain dealers from whom the assessee claims to have purchased were fictitious and the alleged first sales were not subjected to tax. The matters were carried in appeal to the Tribunal both by the department and the assessee. The Tribunal applying the two tests laid down in T.A. No. 401/75 confirmed in T.R.C. No. 17 of 1978 (B. Rajendra Oil Mills Refinery v. State of Andhra Pradesh; printed infra) disposed of the matter which now forms the subject-matter of the present T.R.C. The two tests applied to determine whether the assessee is entitled to the exemption of turnover from tax were (1) that the first seller should be a real and identifiable dealer within the State and (2) that mere non-payment of tax by the first seller within the State does not shift the liability to pay tax on the second seller. In disposing of the matter, the Tribunal has, in our opinion, rightly applied the said tests and on the facts and circumstances of the case after verifying the records granted relief in respect of the purchases made by the assessee from real and identifiable sellers within the State whose registration number was mentioned in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased the groundnut oil were not tallying with the correct registration numbers as per the records of the department. The registration numbers given in the bills, it was found, were not assigned to those particular dealers. On further appeal, the Sales Tax Appellate Tribunal, in an elaborate order, granted relief with respect to eight more items, but dismissed the appeal with respect to three items. We are concerned with only those three items, in respect of which the Sales Tax Appellate Tribunal dismissed the appeal. As stated above, the assessee produced sale bills, way bills, weighment notes, analysis reports and particulars of cheques issued to the sellers of the goods. The Tribunal found that the cheques issued to the dealers, from whom the assessee is said to have purchased the groundnut oil, were discounted by those dealers with brokers, without crediting the cheques into their accounts. The Tribunal further found that the registration number of the three dealers (with whom we are concerned in this revision) did not belong to them. To be more precise, the assessee claims to have purchased groundnut oil worth Rs. 2,72,724.45 from "Messrs Ramakrishna Oil Company" who issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to tax, or is liable to be taxed at a reduced rate, lies upon the dealer. The groundnut oil is liable to be taxed on the first sale in the State. Therefore, it is for the assessee to prove that the sale effected by him is not the first sale, which means that he has to prove that the groundnut oil sold by him (after refining) was the oil purchased by him from another dealer, whether registered or unregistered. This burden has to be discharged by the assessee-dealer only. To discharge this burden the assessee has produced sale bills, way bills, and the particulars of cheques issued by him to such sellers. So far as the sale bills are concerned, it was found that registration numbers mentioned therein did not belong to those dealers during the relevant assessment year. It is true that the Tribunal has not considered the way bills purporting to have been issued by the said three dealers. But we are not inclined to remand the matter to the Tribunal for arriving at a fresh decision after taking into consideration the said way bills, for the said way bills suffer from the same defect as the sale bills-namely, the wrong registration number. The Tribunal disbelieved the sale bills on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the way bill was checked or stamped at the sales tax check post, does not equally prove, nor is relevant, on the question of existence or otherwise of the consignor. It could very well have happened that the consignee may himself have purchased the groundnut oil at Proddatoor from the producers, and transported the goods, falsely showing a non-existing dealer as the consignor. The checking authorities are not concerned and are not competent, to verify or enquire whether the consignor shown in the way bill is a real or genuine dealer or not. We are, therefore, of the opinion that the way bills, which are now relied upon, are not relevant on the question of the existence or otherwise of the consignor from whom the assessee claims to have purchased the groundnut oil. The circumstance that the assessee is a very big manufacturer, whose turnover is in crores of rupees every year and, therefore, the probability of his fabricating documents is almost nil, is a question touching upon the merits of the issue, which we cannot take into consideration. This factum may have been relevant and could have been taken into consideration by the assessing and appellate authorities, but merely becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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