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TMI Blog2011 (12) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... arise, but also to reassess the facts and consider the correctness of the inference drawn by the authorities below including the State Tribunal. The position appears to be this, except that this authority may have to remember while entering into an appreciation of the evidence and the inferences drawn by the authorities below and the State Tribunal, that it acts as the third court of the appeal and the restriction that would be inherent in the context of this Tribunal being the third appellate authority. The appellant is a public sector Government company engaged in mining of ores of zinc, lead, etc., in the State of Andhra Pradesh and other States. The appellant has also a smelter plant in Vishakhapatnam in the State of Andhra Pradesh. The process of manufacturing of zinc, lead and other by-products takes place at the smelter plant. The appellant is having its offices in various cities including Kolkata. Sales of the products were being effected from various stock points in the country. The zinc and lead manufactured by the various smelter plants are being transferred to Jamshedpur stock point and Calcutta stock point. These stock points received zinc and lead als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso considered the aspects projected on behalf of the appellant. On weighing the circumstances thus available and noticing the decisions of the High Court relevant in the context, came to the conclusion that the sale involved was a sale in the course of inter-State trade. The assessing officer therefore assessed the turnover leading to the supply of lead to IISCO and TISCO and imposed tax thereon at the rates prescribed. The appellant took up the matter in appeal. The appellate authority, the Deputy Commissioner (CT), on a reappraisal of the materials, came to the conclusion that the movement of goods was occasioned by the firm orders for purchase placed by the IISCO and TISCO and that the sales came within section 3 of the Act and liable to tax under section 6 of the Act. The appellate authority noticed the conditions of the offer and the acceptance of the offer. He noticed that as far as the order placed on TISCO was concerned, the nomenclature of the order itself was, purchase order . The terms of the orders of purchase placed by IISCO and TISCO coupled with the law laid out by the Supreme Court in English Electric Company of India Ltd. v. Deputy Commercial Tax Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the insurance policy, the octroi paid by the appellant in its name and the permit issued by the sales tax authorities of Bihar showing the appellant as the consignor and the consignee and the other circumstances referred to in the order of the Tribunal would lead to the conclusion that there was no sale in the course of inter-State sale in terms of section 3 of the Act. On assessing the weight of these documents in the light of the other circumstances, the Tribunal came to the conclusion that since the movement of goods was triggered by the purchase orders of the buyers, the mere fact that the actual deliveries pursuant to the contract were effected subsequently by the sales office, Calcutta, was not material. It noticed the various decisions cited before it and the ratio of the decided cases to conclude that the question had to be decided on the facts of the case, on an appreciation of the entire facts and circumstances. It also dealt with the argument on behalf of the appellant that the case was covered by illustration 2 in the case of Balabhagas Hulaschand v. State of Orissa [1976] 37 STC 207 (SC) and held that on the peculiar facts of the case, in the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances the orders placed by IISCO and TISCO were firm orders for specific quantities of the products. The attempt of the appellant to distance itself from the offers and acceptance secured by the branch office at Kolkata, can only be considered as a desperate attempt to get over the effect of that part of the transaction in assessing the nature of the sale involved herein. On an appreciation of the facts indicated by the orders under appeal, in the light of the facts high- lighted on behalf of the appellant showing the appellant as the consignor and the consignee, it is not possible to say that the authorities below have come to a conclusion that is unreasonable or one that could not have been come to by an authority instructed in law. It is true that even though the orders placed by IISCO and TISCO indicated the specified quantities to be supplied every month and the supplies did not always conform to it, may not tilt the scale in favour of the appellant. Similarly, the fact that in some months, more quantities were delivered to the companies or that the goods sent from Vishakhapattnam were not earmarked, may not also tilt the scale. It appears to me that it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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