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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 ..... 2. According to the petitioner, the first respondent Chitra Timber Traders, Kottakulam, Shencottah, are dealers in timber and are assessed on the file of the Deputy Commercial Tax Officer, Shencottah Assessment Circle. They were finally assessed on a total and taxable turnover of Rs. 6,78,423/- and Rs. 1,57,044/- by order dated 17.02.1994 in CST 471228/92-93 under the Central Sales Tax Act. Based on the extract verification made by the Enforcement Wing Officials, the Deputy Commercial Tax Officer, Ambasamudram vide his proceedings CST No.471228/92-93, dated 13.08.1997, revised the original assessment and disallowed the claim of exemption on a turnover of Rs. 96,069/- as consignment sales and brought to tax as outright inter-State sales asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in turn they have effected the sale of goods to the ultimate buyer and therefore, it is only a consignment sale which is eligible for exemption. For which the main reasoning was, even in the sale note contains the expenditure detail to the tune of Rs. 17,387/- which includes the consignment commission. If the sale is not effected through the agent, there cannot be any necessity or need for commission. Secondly, they would also contend that the delivery note clearly contains the name of the agent and commission is being paid and the payment is made only after deduction of commission. Further, he would only contend that there is nothing wrong in the agent to get the buyer to immediately effect the sale thereby it is treating as a consignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lorry freight, octroi, unloading charges and measurement charges for the goods transported to another buyer. In this connection, it is worthwhile to read the original exemption order granted by the department in the year 1994. The department has categorically accepted that the goods were sent after deducting the transport charges and commission charges and they have not received any money prior to the sale. The lorry receipts have also been produced before the department and the department has also accepted that the goods were sent by lorry and Form-20 has been sent and because of the purchasers are from outside the State, under Rule 6-A of the Central Sales Tax Act, 1956, the exemption was granted. Therefore, at the time of granting ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under the Central Act. Section 9(2) of the Act is subject to the other provisions of the Act which would include sub-section (2) of Section 6-A of the Act. "Subject to" is an expression whereby limitation is expressed. The order is conclusive for all purposes. It can only be reopened on a small set of grounds such as fraud, misrepresentation, collusion, etc." 7. He would also rely upon a judgment of this Court reported in [2011] 42 VST 362 (Mad), State of Tamil Nadu v. Parry Agro Industries Limited and another, wherein this Court has followed Ashok Leyland case. The relevant paragraphs are extracted as under: "6. It is now settled by the Supreme Court that once form F has been accepted and an assessment has been made on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Sales Tax Act with reference to section 16 proceedings in the decision reported in Ashok Leyland Ltd., v. State of Tamil Nadu [2004] 134 STC 473 (SC), wherein the apex Court pointed out as follows (para 37, at page 502 in 134 STC): "37. By reason of sub-section (2) of Section 6A, a legal fiction has been created for the purpose of the said Act to the effect that transaction has occasioned otherwise than as a result of sale. On an analysis of the aforementioned provisions, therefore, the following propositions of law emerge: (i) The initial burden of proof is on the dealer to show that the movement has occasioned by reason of transfer of such goods which is otherwise than by reason of sale. The assessee may file a declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited ground that even after the amendment to the said provision, unless the details are found to be writ with fraud, collusion or misrepresentation or suppression of material facts, on a mere change of opinion, the findings, by themselves, would not go for any disturbance under Section 16 of the Act. Discovery of new materials although may form a ground, it, by itself, would not be a ground for reopening of proceedings unless such discovery indicates a jurisdictional error. " 10. Therefore, as rightly pointed out by the learned Counsel for the first respondent and relied upon the judgment of the Supreme Court and a Division Bench judgment of this Court, we do not find any reason to interfere with the reasoned order of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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