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TMI Blog2008 (10) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the reason being there was no inter-State sale in such transactions. In support of its claim for exemption, the appellant furnished F form declarations issued by the branch incharge or the consignment agent, as the case may be, as required by section 6A of the CST Act. It also filed sale-pattis (account statements) furnished by the consignment agents to substantiate the claim. The assessing authority, on going through the F forms and the accounts and documents produced by the dealer allowed the exemption in respect of stock transfers and the consignments sent to the agents. It is the case of the appellant that the branches and the consignment agents paid local sales tax in the other States. The assessing authority excluded the turnover attributable to stock transfers and dispatches to consignment agents excepting a small portion thereof for which the F forms were not filed. In so far as the partial disallowance of the claim by reason of non-production of F forms, the appellant filed appeals to the Assistant Commissioner (CT), Erode. Before the appellate authority, the appellant filed F forms and, therefore, the matter was remanded to the assessing authority to consider the F for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Enforcement officials after inspection of the appellant's premises set in motion the proceedings for reassessment. The assessing authority observed that the assessee dispatched the goods to the branches/consignment agents in various States after the Federation(1) determined the price and gave instructions for dispatch. More importantly, it was observed that the goods were dispatched in the guise of stock transfers/consignments to agents only after realization of the full value either in the form of cheque or DD received from the buyers concerned. Another aspect relied upon was that the names of the ultimate buyers outside the State to whom the goods were meant for have been mentioned in the transport records. Annexures A and B to the assessment order set out the details of transactions date-wise. The assessing authority therefore inferred that the goods were moved from the State of Tamil Nadu to other States pursuant to and in fulfilment of the preexisting contracts of sale with the buyers and therefore the transactions amounted to inter-State sales. Both the first appellant authority as well as the Appellate Tribunal merely reiterated the findings of the assessing author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med by the assessing and appellate authorities. The other feature relied on by the assessing officer, namely, that the goods were dispatched on the instructions of the appellant's Federation office at Chennai which also specified the price is not very material as such coordination between the appellant and the Federation does not per se give rise to an inference that the Federation had already received the orders from the prospective buyers. As regards the other point adverted to by the assessing authority that the names of the buyers were noted in the transport records, it is not clear whether such names were mentioned even in cases where the payments were not received by the date of dispatch. Noticing that the crucial aspect in the case which has bearing on the inter-State movement turns on the fact whether inter-State movement commenced before or after the payments were made by the buyers outside the State and that in some cases, no details as to the dates of cheques/DDs and receipt thereof were forthcoming, we directed the parties to furnish the relevant facts and figures in a tabular form so as to have a clear picture on facts. At the next date of hearing, the assessing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion that the relationship between the appellant and the consignment agents was that of vendor and vendee but not of principal and agent. Thus, none of the transactions representing dispatches to consignment agents should have been treated as inter-State sales. The above being the factual position on merits, let us examine from the legal angle whether the assessment could have been reopened or revised by the assessing authority, assuming that the transactions were in the nature of inter-State sales. It is here the decision of the Supreme Court in Ashok Leyland Ltd. v. State of Tamil Nadu [2004] 134 STC 473; [2004] 3 SCC 1 comes into the picture. The Supreme Court construed the provisions of section 6A of the CST Act which bears the heading -- "Burden of proof, etc., in case of transfer of goods claimed otherwise than by way of sale". Differing with the two Judge Bench of the Supreme Court in the Ashok Leyland Ltd. v. Union of India [1997] 105 STC 152, the three Judge Bench held that once a declaration in form F is accepted by the assessing authority after making requisite inquiry into the correctness of the particulars thereof and an order to that effect is passed, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclude that the order of an authority under section 6A is conclusive for all practical purposes. . . . 61.. In the case at hand, it has to be determined whether the sale in question is an inter-State one. If through the means of a legal fiction it is determined that this is not an inter-State sale, then it amounts to a transfer of stock. This finding is made by a statutory authority who has the jurisdiction to do so and there is no provision for appeal. Therefore, the order made by such authority is conclusive in that it cannot be reopened on the basis that there had been a mere error of judgment. It also cannot be reopened under another statute, for example, the Sales Tax Act of the State concerned, when the order had been made under the Central Act. Section 9(2) of the Act is subject to the other provisions of the Act which would include subsection (2) of section 6A 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. . . . 67.. It has not been disputed before us that all the requisite particulars are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bringing it within the exceptions enunciated in Ashok Leyland [2004] 134 STC 473; [2004] 3 SCC 1. However, as pointed out by the Tribunal while dealing with the penalty appeals, it is not a case of willful suppression, but it is a case of claiming wrong exemption in relation to certain types of transactions coming under inter-State sales. In the impugned assessment, it is not brought out clearly what has been withheld deliberately at the time of original assessment. In any case, in view of the Memo filed by the appellant's representative and its counsel based on the submissions made at the time of hearing on September 17, 2008 whereby the appellant conceded to suffer tax to the extent of branch transfer transactions for which payments were received in advance, the issue of willful suppression need not be delved into further. As regards the payments received subsequent to the dispatches and the consignments to the agents, as discussed earlier, there is no clinching evidence to treat them as inter-State sales and the question of willful suppression does not at all arise. Similarly, in respect of the turnover for which details are lacking, no such inference can possibly be drawn. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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