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TMI Blog2014 (5) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... hooses any other mode, it must discharge its burden to the satisfaction of the AO that, there was a second inter-State sale that the assessee had not taken delivery of the goods to break the link in the chain of movement. The assessee admittedly attempted to prove its claim by endorsing the document in the title - However, a reading of the endorsement on the back of the goods consignment notes show the instruction only - Beyond the words thus recorded therein giving direction for delivery, absolutely there was no material to point out the time on which such an endorsement was made to claim second inter-State sale - Thus in the absence of any material to substantiate this fact, it is difficult for anyone to come to the definite conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 196/94 (SMR.No.244/96) in respect of the assessment year 1991-92. 2. The assessee herein purchased 19.760 Metric Tons of chemicals viz., Cholohexanone from the Fertilizers and Chemicals, Travancore Limited, Kochi under invoice dated 09.07.1991 and 11.07.1991. The goods were received in Tankers to the assessee's branch address as Coimbatore. The assessee contends that while in the course of movement of goods, the assessee had endorsed the goods consignment note in favour of Tuticorin Alkali Chemicals Fertilizers, Trichy, thus, the assessee claim that this is a sale falling under Section 6(2) of the Central Sales Tax Act, 1956. 3. The assessee contended that the sale was effected by endorsing the Lrs to the buyers at Trichy without taki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Assessing Officer clearly pointed out the endorsement ; consequently, the question of the assessee taking possession of the goods did not arise. Though Form XX delivery note would suggest that the assessee had handled the goods, other records would prove that there was second inter state sale. Further, when the goods were in transit, the date of despatch to Trichy, transport of goods by the same lorry would go to suggest that there was only a second inter-State sale ; consequently, the First Appellate Authority allowed the appeal. 6. The Revenue, however, took this for revision by issuing notice under Section 34 of the Act. The Joint Commissioner pointed out that the assessee used their own Form XX for the purposes of further moveme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present revision. 9. Learned counsel for the assessee brought to our attention that endorsement was made at the back of goods. He further pointed out that mere fact that the assessee had used Form XX delivery notes per se cannot be held against the assessee to reject the claim of Section 6(2) exemption under the Central Sales Tax Act and the endorsement was very much available at the back of the goods consignment note. The Joint Commissioner committed serious error in his view that the use of the delivery note would go against the assessee's claim. 10. Learned counsel further pointed out that for effecting second inter State sale, the law does not insist on endorsement in the document of title. He pointed out to the observation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an endorsement in the documents of the title, in the absence of any material to disprove the claim, the assessee's case merits to be excluded under Section 6(2) of the Central Sales Tax Act. 11. Heard the learned counsel on either side and perused the documents available on record. 12. As far as the law on the question of considering Section 6(2) sale is concerned, it is a settled principle that the burden of proving second inter-State sale rests on the assessee. As pointed out in the decision in the case of The Deputy Commissioner of Commercial Taxes, Madurai Division, Madurai reported in 21 STC 184, making endorsement in the document of title is not the only mode to prove a second inter-State sale. There may be other modes by which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point out the time, when the endorsement was made to show that the assessee had not taken possession of the goods, there can be no presumption of the fact that the assessee did not take delivery of the goods. Thus in the absence of any material to substantiate this fact, it is difficult for anyone to come to the definite conclusion on the basis of the instructions noted that the endorsement was in fact made by the assessee company at Coimbatore before delivery. In such circumstances, the decisions cited by the assessee do not in any way advance the case of the assessee. 13. In the absence of any material to substantiate its claim that the endorsement made thus in fact satisfied the requirements for showing that the assessee had not taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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