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TMI Blog2013 (5) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... year 1994, was rightly sought to be withdrawn subsequent to the inspection according to the department. Held that – It is settled by Supreme Court that once form F has been accepted and an assessment has been made on the basis of form F declaration filed by the assessee, revision of assessment cannot be made unless or otherwise the assessing authority has recorded a finding that assessment has been completed by fraud, misrepresentation or collusion. Useful reference can be had to the judgment of the Supreme Court in the case of Ashok Leyland Ltd., v. State of Tamil Nadu reported in [2004 (1) TMI 365 - SUPREME COURT OF INDIA]. Discovery of new materials although may form a ground, it, by itself, would not be a ground for reopening of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment sales and brought to tax as outright inter-State sales assessable to tax at 10% and also levied a penalty of ₹ 14,410/- under Section 9(2) of the CST Act. Aggrieved by the order of assessment, the first respondent preferred an appeal in AP CST 76/97 to the Appellate Assistant Commissioner (CT), Tirunelveli and the Appellate authority by order dated 23.10.1998 dismissed the appeal. A second appeal was also filed by the first respondent against the order of the Appellate Assistant Commissioner before the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Madurai, the Second Respondent herein in MTA No.70 of 1999 and the Tribunal by its order dated 16.04.2004 allowed the appeal in full. The order of the Tribunal is erron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to immediately effect the sale thereby it is treating as a consignment sale. Lastly, he would contend that because of the order was obtained they have delivered the goods through the same lorry after paying the necessary lorry freight, octroi, unloading charges and measurement charges which is vital factor which has been rightly considered by the Tribunal and not considered by the lower authorities. 4. Heard both sides. 5. The State aggrieved against the order of the Tribunal which has set aside the order of lower authorities treating the sale as consignment sale. The grievance of the department is that the goods were supplied directly from the purchaser to the other State and therefore, it can be only treated as of other State sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1956, the exemption was granted. Therefore, at the time of granting exemption, the department has verified in regard to the payment of commission charges and also the payment of freight. Therefore this point has been subsequently not considered by the first appellate authority. Hence the Tribunal has rightly considered this matter and categorically come to the conclusion that it is a clear cut sale outside the State. Hence rightly the exemption was granted. 6. The learned Counsel for the first respondent would rely upon a decision of the Hon'ble Supreme Court reported in [2004] 134 STC 473 (SC), Ashok Leyland Ltd., v. State of Tamil Nadu and another, for the proposition that when the order is made by a statutory auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt that once form F has been accepted and an assessment has been made on the basis of form F declaration filed by the assessee, revision of assessment cannot be made unless or otherwise the assessing authority has recorded a finding that assessment has been completed by fraud, misrepresentation or collusion. 7. Useful reference can be had to the judgment of the Supreme Court in the case of Ashok Leyland Ltd., v. State of Tamil Nadu reported in [2004] 134 STC 473, wherein the power of the authority to revise the assessment which has been made on the basis of accepting form F has been very elaborately considered by the Supreme Court and the said decision squarely covers the issue. Therefore, it is very clear in this case also the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of such goods which is otherwise than by reason of sale. The assessee may file a declaration. On a declaration so filed an inquiry is to be made by the assessing authority for the purpose of passing an order on arriving at a satisfaction that movement of goods has occasioned otherwise than as a result of sale. (ii) Whenever such an order is passed, a legal fiction is created. Legal fiction, as is well-known, must be given its full effect. 10. Once a declaration has been accepted and acted upon by the Revenue unless and until on further enquiry made thereto, the particulars furnished were found to be incorrect or untrue, the assessment once made based on form F, could not be reopened. The apex Court pointed out that (page 509 in 134 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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