9911796707
TMI Blog2009 (11) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment year 1973-74, the assessing officer finally determined the total and taxable turnover of the assessee at Rs. Nil. Subsequently it was found that the turnover in a sum of Rs. 31,96,736 relating to despatch of ossein to Cochin was to fulfil the orders placed by Tvl. Rallis (India) Limited (hereinafter briefly referred to as RIL), Bombay and hence not eligible for exemption from tax as branch transfer. After due formality, a revised assessment order was passed disallowing the exemption from tax on the abovesaid turnover and levying tax at the rate of 10 per cent as outright inter-State sales in the absence of C form, by an order dated May 7, 1980. (ii) The appeal carried on by the assessee in A.P. No. CST. 88/80 was allowed by the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal to the Tribunal. The Tribunal, by reason of the impugned order, granted the relief as sought for, by following the decision of this court in Rallis India Limited v. State of Tamil Nadu [1994] 92 STC 325. The correctness of the same is now canvassed in this writ petition by the Department on the ground that the variance of fact pointed out by the Appellate Assistant Commissioner has been just like that eschewed by the Tribunal and followed the Division Bench judgment in Rallis India Limited v. State of Tamil Nadu reported in [1994] 92 STC 325 in a mechanical fashion. It was further contended that the precedent cannot be applied without discussing the fact. A single variance in a fact and one additional factor in a particular case make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he consistent supply of goods to RIL, who in turn had exported the goods out of the territory of India. There was no privity of contract between the assessee and RIL. Though the order of RIL is dated September 17, 1993, the assessee was aware of the requirement of 340 tonnes of ossein by RIL in view of the confirmation of the foreign buyers and the cause of the movement of goods from Ootaghamund to Cochin was to fulfil that purpose. The export was occasioned by the contract of sale between RIL and the foreign buyer and not by the contract of sale between the assessee and the RIL. The assessee was under no contractual obligation to the foreign buyer either directly or indirectly. The rights of the assessee were against RIL. There was also no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11, 1973 (170 bags), September 11, 1973 (169 bags). In all a total of 3,275 bags were sent to the branch of the assessee and held there as stock against which 1168 bags were supplied on September 12, 1973. Subsequently, similar accumulation of despatches of sale had been effected as under: 15.09.1973 (667 bags) 19.08.1973 (1340 bags) 28.09.1973 (834 bags) 10.12.1973 (2500 bags) 31.01.1974 (2000 bags) 20.03.1974 (3686 bags) Thus regular despatch of goods manufactured in the normal course of their business activity was sent and even as on the date of closure of financial year, there was a balance held as stock. In such circumstances whether the learned Appellate Assistant Commissioner was right in concluding that in the context of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.80 11/12/1973 8. 2/dt.10.8.73 ORG37/10.12.73 45.00 ossein 2,88,944.75 11/12/1973 9. 2/dt.10.8.73 ORG/1/16.12.73 10.00 gelatine 1,77,200.75 18/12/1973 10. 2/dt.10.8.73 ORG/38/31.1.74 60.00 ossein 3,85,654.41 06/02/1974 11.1A/dt.15.1.74 ORG/39/26.3.74 110.58 7,10,761.07 23/03/1974 31,96,736.04 The comparison of the orders placed by Rallis India Limited, Bombay, to the Cochin Branch or to the appellant's factory at Ooty does not make any link between the despatches regularly carried out by the appellant's factory. For example in the month of August 13 despatches were effected, in September 22 despatches were made, in October 5 despatches were made, in November 14 despatches were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of storing in the godowns in Cochin. The fact that there was no facility for storing goods at Uthagamandalam was not disputed. Therefore, at most it could be said against the dealer that it was moving the goods to Cochin in the sure hope of getting orders from RIL, Bombay or from foreign buyers. Moreover, the goods were earmarked for export only at Cochin and at any point of time stocks were available at Cochin. The movement of goods from one State to another was not occasioned by sale, and amounted to stock transfer only, not liable to tax; and (ii) the fact that C forms were made available would not raise a presumption that the transfers were made in pursuance of orders received from RIL, Bombay. In view of that decision which is fair ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
