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TMI Blog2005 (6) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... dia, contending that the same is vitiated by jurisdictional infirmity referable to non-exercise of power under section 6-A(2) of he CST Act and that the said order has been made without considering the materials placed by the writ petitioner before the assessing authority. It is urged that if an order under section 6-A is issued, the same would have resulted in the conclusion of the assessment, in view of the terms of the said provision of law. Heard Sri C. Natarajan, learned Senior Advocate on behalf of the petitioner and Sri Raju Joseph, the learned Special Government Pleader (Taxes). By virtue of the amendment made by section 151 of Central Act 20 of 2002 to sub-section (1) thereof, section 6-A of the CST Act reads as follows: "Section 6-A. Burden of proof, etc., in case of transfer of goods claimed otherwise than by way of sale. (1) Where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was occasioned not by reason of sale, but by reason of transfer of such goods by him to any other place of his business or to his agent or principal. It was held that the production of declaration (F forms) was only optional and permissive, but not compulsive. However, the aforesaid view that the production of the declaration (F forms) is not mandatory does not survive the amendment made by Act 20 of 2002 since, as and from the date of the coming into force of the said amendment, if the dealer seeks exemption on the ground that the inter-State movement of goods were occasioned otherwise than as a result of sale, he has to furnish the prescribed declaration. If he fails to do so, it shall be deemed for all purposes of the CST Act, that the transit of goods in question was occasioned as a result of sale. In C.P.K. Trading Company v. Additional Sales Tax Officer [1990] 76 STC 211, the division Bench of this court held as follows: "A plain reading of section 6-A(2) of the Central Sales Tax Act points out that in cases where the dealer exercises the option of furnishing the declaration (F forms), the only further requirement is that the assessing authority should be satisfied, after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case as follows: "34. . . . . Section 6-A provides for exception as regard the burden of proof in the event a claim is made that transfer of goods had taken place otherwise than by way of sale. Indisputably, the burden would be on the dealer to show that the movement of goods had occasioned not by reason of any transaction involving sale of goods but by reason of transfer of such goods to any other place of his business or to his agent or principal, as the case may be. For the purpose of discharge of such burden of proof, the dealer is required to furnish to the assessing authority within the prescribed time a declaration duly filled and signed by the principal officer of the other place of business or his agent or principal. Such declaration would contain the prescribed particulars in the prescribed form obtained from the prescribed authority. Along with such declaration, the dealer is required to furnish the evidence of such dispatch of goods by reason of Act 20 of 2002. In the event, if it fails to furnish such declaration, by reason of legal fiction, such movement of goods would be deemed for all purposes of the said Act to have occasioned as a result of sale. Such declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r vested in the officer is a wide discretionary power since the goal he has to achieve is a satisfaction as to whether the particulars contained in the declaration (F forms) are "true". On the conclusion of the said enquiry he should record a finding one way or the other. He has to pass an order on the said declaration made by the dealer. That order may be passed either before or along with the assessment. The assessee (writ petitioner) had, indisputably, filed declarations in form F and had produced different documents in its attempt to satisfy the assessing authority as to the genuineness of the particulars stated in the F forms during the enquiry. According to the writ petitioner, lorry receipts, as also goods consignment note and form 26 under the KGST Act, as well as excise invoices as prescribed under rule 52A of the Central Excise Rules, 1944 and sales tax declaration in form 27B were produced before the assessing authority. Exhibits P8 to P12 are produced by the petitioner to demonstrate the nature of the documents produced before the assessing authority. However, the impugned exhibit P7 is passed by the assessing authority by holding merely that the claim of exemption un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enches of co-equal strength, the later decision of the apex Court in Ashok Leyland [2004] 134 STC 473, delivered on January 7, 2004 approving C.P.K. Trading Company's case [1990] 76 STC 211 (Ker), was not available while Esab India Ltd.'s case [2006] 147 STC 417 [App]; [2004] 12 KTR 34, was decided on September 30, 2002. Such a view, as has been read into the said judgment by the assessing authority (quoted at the end of paragraph No. 11 above) while issuing the impugned exhibit P7, is just not there in the decision in Esab India Ltd.'s case [2006] 147 STC 417 [App]; [2004] 12 KTR 34. The assessing authority, in my view, has grossly erred and has failed to exercise the jurisdiction vested in it under section 6-A of the CST Act in failing to consider all the materials placed by the assessee and also in not objectively assessing the materials as he should have done, in terms of law laid touching the content and scope of the jurisdiction of the said quasijudicial authority under section 6-A of the CST Act, and passing an order, either way, based on the materials on record. In this context, it is worthwhile to remember that decisions emanate out of factual situations. It is apposit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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