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TMI Blog2016 (4) TMI 1210X X X X Extracts X X X X X X X X Extracts X X X X ..... , the movement of the goods from one State to another i.e. from the State of Jharkhand to the State of Uttar Pradesh is not because of the first sale (intra-State sale), but, the movement of the goods from one State to another State is because of 2nd sale between the petitioner and the purchaser in the State of Uttar Pradesh (inter-State sale). The present matter is between A and B i.e. the first sale which is inter-State sale, whereas transaction between B and C i.e. from the petitioner and Uttar Pradesh Sale, which is the second sale - there is no privity of facts between A and C i.e. between respondent no.5 and the purchaser of the Uttar Pradesh, nor from one sale or purchaser of coal, there is a movement of goods from one State to another State. Coal is not such a commodity which will be consumed by the purchaser, always. He may purchase for captive consumption or he may not. Sometimes, petitioner may be a trader also. A trader is bound to further sell the coal, within the State, outside the State or even outside the country. In the fact of the present case, in the second sale, the movement of goods has taken place from one State to another State and, therefore, respondent n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner was selling dealer of coal to a purchaser outside the State i.e. Uttar Pradesh. Thus, the first transaction was intrastate sale and the second transaction was interstate sale for which the statutory forms are to be submitted before the Assessing Authority. 14. That admittedly in the present case, there had been two transactions of sale i.e. intrastate as well as interstate, the petitioner is duty bound to submit two different statutory forms before the assessing authority. The assessment proceeding of the petitioner for financial year 201213 is continuing, which would be done in accordance with law. (Emphasis supplied) 4. Having heard counsels for both the sides and looking to the facts and circumstances of the case, it appears that the petitioner is an auction purchaser of the coal from respondent-C. C.L. Petitioner is also a registered dealer within the State of Jharkhand. Respondent no.5 has sold the commodity viz. coal to this petitioner within the State of Jharkhand . Thus, it is intra-State sale and hence, under the Jharkhand Value Added Tax Act the petitioner is liable to make payment of Jharkhand Value Added Tax @ 5% of the sale price. 5. It further appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered dealer within the State of Jharkhand. During the e-auction of coal proposed by respondent no.5Coal Company, this petitioner, who is situated within the State of Jharkhand, had participated in the e-auction of coal. 14. Petitioner being the highest bidder was a purchaser of coal from respondent no.5 which is also situated within the State of Jharkhand. Now, consideration has also been moved from petitioner to respondent No.5 and the sale was completed between the petitioner and respondent no.5 within the State of Jharkhand. 15. Looking to the provision of the Jharkhand Value Added Tax Act, 2005, the petitioner is liable to make payment of VAT which is at the rate of 5% of the sale price of the coal, as the sale is an intra-State sale. These facts are admitted facts so far as the present case is concerned. 16. It further appears that the coal is not a consumable item which can be consumed by human being like a milk or fruit. It ought to have been kept in mind by respondent no.5 that they are selling coal and not fruits. The purchaser is bound to further sell the goods either; (a) within the State of Jharkhand, or; (b) outside the State of Jharkhand, or; (c) he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one State to another; or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another. (Emphasis supplied) 22. In view of the Section of the Central Sales Tax Act, 1956, the presumption of inter-State will come into existence only upon fulfilling the following two conditions: (a) There must be one transaction of sale or purchase of goods. (b) In this one transaction of sale or purchase of goods, movement should be from one State to another State. In the facts of this case, in first sale between petitioner and respondent no.5, goods have never moved out of State. But the goods have moved out of State in second transaction of State. 23. In the facts of the present case, as stated herein above, there is no privity of facts between A and C i.e. between respondent no.5 and the purchaser of the Uttar Pradesh, nor from one sale or purchaser of coal, there is a movement of goods from one State to another State. Coal is not such a commodity which will be consumed by the purchaser, always. He may purchase for captive consumption or he may not. Sometimes, petitioner may be a trader also. A trader is bound to furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de for payment of lesser tax, as the sale in the present case attracts the provisions of the TNVAT Act, 2006 as set out above. Merely because there is movement of goods from the State of Tamil Nadu to another State at the instance of the buyer, that would not take it out of the purview of the term sale within the State. There are certain rules which provide for transportation of goods in question after the sale. But that does not change the character of the sale within the State consequent to tender-cum-auction sale. The benefit which the petitioners may get out of the provisions of the Income-tax Act is totally alien to the payment of tax under the TNVAT Act, 2006, as the two enactments operated in different fields. There is no scope or provision for reading one Act into the other, unless there is an express provision. Since the sale in this case was effected within the State of Tamil Nadu on the basis of the tender-cum-auction sale and the petitioners in all these cases have agreed to abide by the terms and conditions unconditionally, there cannot be any manner of doubt that the case squarely falls within the mischief of section 3 of the TNVAT Act, 2006. Therefore, the demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now taken by this court. For the reasons stated supra and in view of the decision of the Division Bench of this court, the plea of the petitioners that it is an inter-State sale has no legal basis and hence, the said contention is rejected. The challenge to levy of Tamil Nadu value added tax therefore fails. 27. In view of the aforesaid decision, even if the movement of goods have taken place out of one State to another State, by per se, Central State Tax is not leviable. One has to draw his attention, whether the movement of goods from one State to another has taken place due to e-auction or not. If answer is negative, the Central Sales Tax is not leviable. There may be second sale. Subsequent purchaser may purchase the same goods. Now, if due to subsequent sale, if, the very same goods are moving from one State to another, therefore seller of goods of first transaction cannot levy Central Sales Tax, but, he can levy only Value Added Tax. 28. The earlier decision rendered by this Court on the very same point between M/s Amit Enterprises Vs. Central Coalfields Limited reported in 2015 (4)JCR 129 (Jhr.) was challenged before the Hon'ble Supreme Court by the Central C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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