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TMI Blog2010 (5) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... which was already allowed under section 6A of the Central Sales Tax Act, 1956 when there was no appeal pending under the Central Sales Tax Act, 1956? The applicant is a public limited company registered under the Bombay Sales Tax Act, 1959 and Central Sales Tax Act. The applicant is a manufacturer of engineering goods and re-seller in paints. The period under consideration is April 1, 1992 to March 31, 1993. The applicant was assessed under the Bombay Sales Tax Act and Central Sales Tax Act on March 25, 1996. The applicant preferred separate appeals against both the orders of assessment on June 10, 1996. The appeal against the order under the Bombay Sales Tax Act is registered as DC/Appeal-VI/A-40/96-97 whereas the appeal against the order under the Central Sales Tax Act was registered as DC/Appeal-VI/CA-40/96-97. On August 7, 1999 a show-cause notice for reduction of set-off under rule 41D and enhancement in tax, interest and penalty was given to the applicant by the Deputy Commissioner of Sales Tax, Appeal VI. The applicant filed its reply dated August 21, 1999 to the said show-cause notice. In the meanwhile, the Government of Maharashtra by notification announced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed. Consequently, interest under section 36(3)(b) of the Bombay Act was levied in the first appeal. As a result of this first appeal, the applicant was required to pay balance dues of Rs. 14,95,805. Aggrieved by the order of the first appellate authority dated November 29, 1999, the applicant preferred Second Appeal No. 120 of 2000 before the Second Bench of the Maharashtra Sales Tax Tribunal at Mumbai. In the second appeal, the Tribunal by its judgment dated January 31, 2001 the action of the first appellate authority disallowing the claim of branch transfers and labour charges was confirmed by the Tribunal. Being aggrieved by the judgment dated January 31, 2001 passed by the Second Bench of the Maharashtra Sales Tax Tribunal at Mumbai the applicant preferred reference application under section 61(1) of the Bombay Sales Tax Act, 1959 referring the question mentioned in paragraph 1 (supra) to this court under section 61(1) of the Bombay Act. Submissions Ms. Badheka, learned counsel appearing for the applicant submits that though the appeal under the Central Sales Tax Act was disposed of under the Maharashtra Rajya Kar Vivad Nivaran Yojana, 1999, the authority proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 6A and that is production of declaration in form F under rule 12(5) of the Central Sales Tax (Registration and Turnover) Rules, 1957. These forms give full details of dispatch and transport data. The forms are issued by the respective State Governments and use of which and the disposal of the goods received under such form is verified during the assessment of the branch in that respective State. The fact of branch transfer can be proved by any other mode of proof such as books of accounts, branch accounts, certificate from branch, etc. The learned counsel appearing on behalf of the applicant submits that though their case attained finality under the Central Sales Tax Act, the authority below proceeded against the same cause of action under the State Act and held against the applicant. The learned counsel for the applicant submits that the authority wrongly cast upon the applicant burden of proving the transfer of their stock to their branch office by producing additional evidence other than form F. She submits that all the documents were produced in support of the transactions which were already verified by the assessing authority while allowing the same under the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The learned counsel appearing for the applicant further submits that under the Central Sales Tax Act before reopening of the assessment order, it is mandatory on the part of the authority to issue notice. In the present case the authority failed to give any notice to the applicant for reopening the assessment under the Central Sales Tax Act. She relies upon the judgment of this court (to which one of us, (i.e., Shri Justice V.C. Daga) was a party) in the matter of K. Mohan Co. (Exports) v. M.H. Vatnani, Assistant Commissioner of Sales Tax reported in [2002] 126 STC 126, in which this court has held that for reopening the assessment under the Central Sales Tax Act, a notice is mandatory. Paragraph 8 of the said judgment reads as under: 8. It is not in dispute that the assessment for the period September 1, 1978 to August 31, 1979 passed on March 29, 1982 allowing deduction of high sea sales am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat: Section 6A of the Central Sales Tax Act, 1956 clearly says that even though form F is not mandatory in support of claim of branch transfer and it can be produced on demand, the appellant is required to produce the other evidence of dispatch of such goods to prove his claim of branch transfers. The movement of goods from one State to another is occasioned as a result of transfer and not a sale can be proved by the evidence of dispatch only. In the present case, the appellant has not produced such evidence of dispatch and, therefore, the claim to that extent of branch transfer cannot be allowed in appeal and hence the claim of branch transfer worth Rs. 60,45,032 is required to be disallowed and taxed to sales tax at 10 per cent which comes to Rs. 6,06,504. The learned Additional Government Pleader further submits that parallel action can be taken by the authority under the Central Sales Tax Act for the same cause of action because both the Acts are different, procedure is different and liability is also different. Conclusions We have heard the learned counsel for the parties and perused the written submissions made by them. The question of law to be answered in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis that there has been a mere error of judgment. It cannot also be reopened under the sales tax law of the State concerned when the order has been made under the Central Sales Tax Act. Section 9(2) of the Central Sales Tax Act is subject to the other provisions of the Act, which would include section 6A(2). 'Subject to' is an expression whereby limitation is expressed. The order in which a finding is given that the movement of the goods was occasioned by reason of transfer otherwise than by reason of sale, is conclusive for all purposes: it can only be reopened on a small set of grounds such as fraud, misrepresentation, collusion, etc. Although it provides for a burden of proof, section 6A of the Central Sales Tax Act, 1956, has to be read in the context of section 6. Section 6 provides for the liability to pay tax on inter-State sales. Any transaction which does not fall within the definition of 'sale' in section 2(g) the burden whereof would evidently be on the assessee/dealer would not be exigible to tax. Prior to the amendment of sub-section (1) of section 6A, the dealer had an option of filing the declaration in form F. After the amendment, the deale ..... 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