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TMI Blog2013 (4) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... order for the goods and that loads have been moved upon specific orders only. Thus without examining the individual transactions, the entire transactions was treated as inter-State sale falling under Rule 4(3-A) of CST (TN) Rules. Tribunal has referred to number of decisions and extensively extracted the decisions. But the Tribunal has not examined the facts in the light of the principles laid down by the Hon'ble Supreme Court in various decisions. Tribunal being final authority of facts, it ought to have considered the facts in the light of the findings of the Assessing Authority and the contra view taken by the Appellate Authority and therefore, the order of the Tribunal cannot be sustained. The assessment order shows that Assessing Authority has not held an enquiry as to individual transactions. Applying the ratio of the above decisions of the Hon'ble Supreme Court, the assessment order cannot be sustained and the matter is remitted back to the Assessing Authority for fresh consideration based on decisions of the ASHOK LEYLAND LIMITED V. STATE OF TAMIL NADU AND ANOTHER [(1) TMI 365 - SUPREME COURT OF INDIA]. Tax Case (Revision) is allowed. The order of Tribunal set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in the assessment order that all the transactions have been verified by the Assessing Officer, the Appellate Authority allowed the appeal. 4. Being aggrieved by the order of Appellate Authority, Department has preferred appeal before Tamil Nadu Sales Tax Appellate Tribunal contending that the records recovered clearly indicates that the goods were despatched based on prior orders and hence it is an inter-State sale. After referring to the entries found in the slips as narrated by the Assessing Authority in his assessment order, the Tribunal allowed the Department appeal holding that there is direct nexus between the sale and the movement of goods from Pollachi to Bombay and the Tribunal also restored the penalty levied by the Assessing Authority. 5. Being aggrieved by the order of Tribunal, the Assessee has preferred the Revision. Tax Case Revision was admitted on the following questions of law:- (1) Whether on the facts and circumstances of the case, the Tribunal was correct in restoring the order of the assessing officer who has disallowed the claim of exemption on consignment sales on the sole ground that the agents have sold the goods in one lot and in short durati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vement of goods from one State to other. In the case of ENGLISH ELECTRIC COMPANY OF INDIA LIMITED V. DEPUTY COMMERCIAL TAX OFFICER, reported in (1976) 38 STC 475, the Hon'ble Supreme Court held that if there is a conceivable link between the contract of sale and the movement of goods from one State to another in order to discharge the obligation under the contract of sale, the sale will assume the character of an inter-State sale . 10. Assessee is a dealer in timbers sending consignment of goods through their agents in Bombay and also made inter-State sales. Assessee effected consignment sales of timber and claimed exemption. In respect of inter-State sales, they have claimed concessional rate of tax. Business place of Assessee was inspected by the Enforcement Wing Officers on 21.6.1991. There was no production of written contract and maintenance of Rule 4(3-A) documents. The Inspecting Officers have verified pattials received from Bombay agent along with copies of sale bills. From the pattials received from the Bombay agent, the Assessing Authority observed that the agents at Bombay never unloaded the different sizes of timbers that were despatched by the Assessee at Polla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty observed that there was no originals of written contract entered between the principal and the agent and that Assessee has not maintained the registers as required by Rule 4(3-A) of CST (TN) Rules. The Assessing Authority also observed that Assessee has not maintained and produced extract of ledger accounts. After referring to the bills and covering letters, the Assessing Authority held that in the absence of production of written contract or agreement and when the registers were not maintained as per Rule 4(3-A), the claim of consignment sale cannot be accepted. Thus he treated the transaction as inter-State sale falling under Rule 4(3-A) of CST (TN) Rules. 13. In (2004) 134 STC 473 [ASHOK LEYLAND LIMITED V. STATE OF TAMIL NADU AND ANOTHER], the Hon'ble Supreme Court has considered the effect of the deeming fiction under Section 6-A(2) of CST Act. Observing that initial burden of proof on a claim of consignment sales always rested on the dealer to show that the movement of goods was occasioned for reasons other than sale, the Hon'ble Supreme Court held as under:- 37. ......... On an analysis of the aforementioned provisions, therefore, the following propositions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn, the same would continue to have its effect not only while making an order of assessment in terms of the State Act but also for the purpose of invoking the power of reopening of assessment contained in section 9(2) of the Central Act as well as section 16 of the State Act. (See Indian Handicrafts Emporium v. Union of India (2003) 7 SCC 589, Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd. (2003) JT 9 SC 109; (2003) 9 Scale 713). 14. If the Assessee fails or neglects to file declaration of transaction in Form 'F', the transaction would be deemed to be inter-State sale . Burden of proof is on the Assessee to prove to the satisfaction of the Assessing Authority that particulars furnished in Form 'F' is true or genuine. Once the Assessee files the declaration in the statutory Form and the claim is made through the said statutory Form, the Assessing Authority has to hold an enquiry for the purpose of passing an order to arrive at a satisfaction that the movement of goods was occasioned otherwise than as a result of inter-State sale.15. As per the decision of the Hon'ble Supreme Court in Ashok Leyland case (2004) 134 STC 473, if declaration is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on consignment sales of ₹ 19,09,732/- and levied tax on the total taxable turn over. 19. Tribunal has referred to number of decisions and extensively extracted the decisions. But the Tribunal has not examined the facts in the light of the principles laid down by the Hon'ble Supreme Court in various decisions. Tribunal being final authority of facts, it ought to have considered the facts in the light of the findings of the Assessing Authority and the contra view taken by the Appellate Authority and therefore, the order of the Tribunal cannot be sustained. 20. The assessment order shows that Assessing Authority has not held an enquiry as to individual transactions. Applying the ratio of the above decisions of the Hon'ble Supreme Court, the assessment order cannot be sustained and the matter is remitted back to the Assessing Authority for fresh consideration based on decisions of the Hon'ble Supreme Court reported in (2004) 134 STC 473 [ASHOK LEYLAND LIMITED V. STATE OF TAMIL NADU AND ANOTHER]. 21. In the result, the Tax Case (Revision) is allowed. The order of Tribunal in CTSA No.356 of 2000 (19.5.2009) is set aside and the matter is remitted back to t ..... 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