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TMI Blog2013 (4) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... has submitted the central excise records to show the delivery of goods after import and the payment of central sales tax at 4% supported by the certificate issued by the Assistant Commissioner (Assessment), Special Circle-II, Commercial Taxes Department, Ernakulam. Those records have not been taken into consideration by the authority. The allegation to say that the records have been camouflaged to show that they were inter-State sales from Cochin but has not stated as to which document has been camouflaged and in what manner to show the inter-State sales from Cochin is not acceptable. A finding of this nature should be based on analysis of documents and not merely on conjectures and surmises therefore, the said statement of camouflage appears to be a figment of imagination by the authority. The next allegation that the goods had been received by the Coimbatore branch, taken to stock and then delivered to customers in Tamil Nadu done only to avoid the local tax was neither supported by any evidence nor has the officer relied upon any material document. It is, therefore, clear that all these allegations are mere conjectures and surmises on the part of the authority, without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners in the State of Karnataka under the Central Sales Tax Act, 1956 on the inter-state sales effected between April 2003 and October 2003 to customers inside Tamil Nadu. 3. W.P.No.9464 of 2004 is filed praying to issue a Writ of Mandamus, directing the State of Kerala, the third respondent to transfer to the credit of the first respondent the taxes paid to the Assistant Commissioner (Assessment), Special Circle-II, Commercial Taxes, Ernakulam, by the petitioners in the State of Kerala under the Central Sales Tax Act, 1956 on the inter-state sales effected between April 2003 and October 2003 to customers inside Tamil Nadu. 4. Heard Mr.Sriprakash, learned counsel appearing for the petitioner and Mr.A.R.Jayaprathap, learned Government Advocate (Taxes) appearing for the respondents 1 and 2. None appears on behalf of the respondents 3 and 4. The petitioner and the respondents are one and the same in all the writ petitions. By consent all the three writ petitions are taken up together for disposal. 5. W.P.No.9462 of 2004:- The petitioner in all the three writ petitions is a dealer in Superior Kerosene Oil. The registered office is in Chennai and an assessee in the books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of SKO. On an analysis of the slips and the purchase orders, the authority comes to the following conclusion:- "Analysis of the above evidences: 1. From the above, it is seen that the consumers in and around Coimbatore have placed orders addressed to the dealers Chennai office and in most of the cases, with advance payments by D.D. and in turn they were forwarded to the assessees Coimbatore branch to monitor the delivery of SKO to the ultimate buyer. Both this order and the D.D. have finally been handed over to the Coimbatore branch. In many purchase orders, the place wherefrom the goods should be supplied, is not mentioned. In some cases there is provision for CST 4% but this will not be the deciding factor for interstate sale. In some cases both the place and CST 4% are absent. Although in some of the cases, it has been noted that goods from Cochin it cannot be determinative test to call it as in the course of interstate purchase. To put it in simple words, the buyer at Coimbatore is concerned only with the delivery of SKO as their premises and not concerned whether it comes from Cochin or from Coimbatore. 2. Further, all the consignments first reached Coimbatore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one state to another and they are ascertained for a particular contract of sale only after they are received at the destination, the sale will not come under sec. 3 but will only amount to a local sale at the destination (vide Kelvinator of India vs. Deputy Commercial Tax Officer 23 STC 86 Madras affirmed in (1975) 36 STC P. 389 SC). 9. As in the instant case, the SKO being an unascertained goods is appropriated in Tamil Nadu for the orders placed with the Coimbatore Depot, it is only a local sale according to Sec.4(2)(b) of the CST Act 1956 read with the explanation 3(a)(ii) to sec.2(n) of the TNGST Act 1959. This will be the case in respect of other Depots and Chennai office. Again in this office notice even No. dated 27.2.04, the dealers were informed that the suppression noticed by the Chennai Enforcement Wing Officials has been noted as Rs.2,85,302-00 instead of Rs.11,41,209-00 by oversight. Hence it may be read as Rs.11,41,209-00 instead of Rs.2,85,302-00 at page 14 of the notice and thus the total and taxable turnover was proposed to be determined upto 31.10.03 is fixed at Rs.14,99,67,343-00 liable at 25%. To the notices issued on the above lines, the dealers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice along with the payment for the bill amount and that there is no mention about the place from where it was rooted through (i.e.) either from Chennai, Coimbatore or Erode branch. Thus to avoid local tax, the dealers have conveniently, camouflaged the local sales as Interstate sales. Thus all the consignment of the alleged Interstate sales have been terminated at the branch office at Coimbatore and after that only, goods delivered to the respective buyers in Tamil Nadu. In view of the above I find no reason to deviate from the earlier proposal and accordingly the dealers are provisionally assessed for the 2003-04 (From 1.4.03 to 31.10.03) as below on a total and taxable turnover of Rs.15,58,27,343-00 and Rs.14,99,67,343-00 respectively." 8. Though the purchase orders were placed in Chennai, the goods were actually delivered only from the State of Kerala and Karnataka. It is the specific plea of the petitioner that the buyers booked the goods at the delivery point, (i.e.) Kerala or Karnataka and transported the consignment by themselves. There was no transfer of the stock to Coimbatore or Erode as the case may be which appears to be the wrong premises on which the autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lea petitioner cited the following reliance in his reply/objection:- (a) 23 STC 152 (Mad.) (Deputy Commissioner (CT), Madurai Division, Madurai v. Arasan Match Industries, Sivakasi), (b) 38 STC 475 (SC) (English Electric Company of India Limited v. Deputy Commercial Tax officer), (c) 52 STC 164 (Mad.) (Chesebrough Pond's Inc. V.State of Tamil Nadu) (d) 102 STC 536 (Mad.) (Macneil and Magor Limited v. State of Tamil Nadu), (e) 48 STC 232 (South India Viscose Limited v. State of Tamil Nadu) The above legal plea has also not been considered by the assessing officer. 12. The finding given in para 8 of the analysis of the evidence is related to movement of unidentified goods for a particular contract of sale and so it will fall under the category of unascertained goods. Therefore, it will not be a sale of being an interstate sale but intrastate sale. 13. The Petitioner's plea is that at no point of time there was transfer of goods to an unidentified buyer in the State of Tamil Nadu. This is borne out from records and therefore, the finding is contrary to the records already furnished. While considering the objections and the evidence produced by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he records were taken for consideration, it is not clear as to how the authority can state that no evidence was filed to show the movement of goods from other States to the local purchasers based on the covenant. This statement appears to be a fallacy, as the purchase orders had already been produced showing the origin of goods from Cochin to the purchaser at the State of Tamil Nadu. The next reason is that there was no evidence to show that the purchase orders were transmitted to the Cochin branch. For this, the petitioner has submitted the central excise records to show the delivery of goods after import and the payment of central sales tax at 4% supported by the certificate issued by the Assistant Commissioner (Assessment), Special Circle-II, Commercial Taxes Department, Ernakulam. Those records have not been taken into consideration by the authority. 8. The next finding of the authority is even more unreasonable, that is to say that the records have been camouflaged to show that they were inter-State sales from Cochin. With great reservation, the Court would observe that the authority has not taken pains to state as to which document has been camouflaged and in what manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for its decision. In S.N.Mukherjee v. Union of India, AIR 1990 SC 1984, the Hon'ble Supreme Court held in paragraphs 35, 38 and 39 as follows:- "35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case. 39. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision." 9. In the light of the above, this Court has no hesitation to hold that the first respondent-Commercial Tax Officer has passed a non-speaking order, bereft of reasons, without application of mind to the records produced. The entire findings are in the realm of conjectures and surmises and, therefore, the petitioner was justified in approaching this Court to interfere with the same. 10. Though a counter affidavit is filed, it does not further the case of the first respondent, as it is only the reiteration of the order and in any event, as has been held by the Apex Court in Mohinder Singh Gill and another v. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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