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TMI Blog1990 (7) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... unit. From that unit, instead of obtaining declaration in form IV by mistake, he obtained declaration in form XXXIV, although in his manufacturing account he has posted the value of the papers and also in the sale account effecting sale to the manufacturing unit. Finding that this was a mistake, the Tribunal was of the opinion that the defect was neither pointed out to the dealer nor any opportunity was extended to him to rectify the same. Being satisfied that the dealer has actually utilised the paper in his manufacturing unit and paid tax thereon, the Tribunal was of the opinion that opportunity should be given to the dealer to produce declaration in form IV since such mistake was not brought to his notice at any stage. The Sales Tax Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but transferred the same to its manufacturing unit for conversion to exercise books and for printing books. The Tribunal has not applied its judicial mind to the real controversy though raised. Accordingly, a question of law arises out of the order. It is"Whether the dealer by transfer of paper, purchased free of tax to resell in Orissa has contravened section 5(2)(A)(a)(ii) of the Act, to the manufacturing unit for manufacture of exercise books and printing books on the facts and circumstances of the case?" There may be contravention if the goods are not resold in Orissa. Sale involves two parties. Manufacturing unit of a dealer is not a separate person, than the supply unit of the dealer who is the person. There was no scope by one unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taxing authorities as to the real nature of the transaction. Where dealer does not produce materials, the taxing authorities are free to have their own inferences from materials on record. We would have normally upheld the order setting aside the assessment order. We, however, find that the Tribunal has not applied its judicial mind to determine the real question in dispute. Where the appellant who is to produce materials does not produce them, there should be no finding in his favour and the Tribunal is to complete the assessment on the materials available instead of remitting the matter back. The same would amount to failure to exercise jurisdiction vested in the Tribunal. 7.. In view of the aforesaid discussion second appellate order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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