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TMI Blog2018 (1) TMI 1251X X X X Extracts X X X X X X X X Extracts X X X X ..... assess turnover at 12.6%. 3. Responding to the revision notice, assessee/respondent had informed the Assistant Commissioner (CT), Harbour II Assessment Circle, that they would submit the original 'C' forms. Forms were not submitted and hence, vide order, dated 30/7/2009, Assistant Commissioner (CT), Harbour II Assessment Circle, passed orders, disallowing exemption on consignment sale. 4. Being aggrieved, the assessee has preferred an appeal in C.S.T.No.7 of 2007, before the Deputy Commissioner (CT I), FAC, Chennai and contended that Form - C declaration, covering the consignment transfer was misplaced and therefore, duplicate portion of Forms were filed. The assessee has further submitted that revision of assessment, disallowing the exemption thereof, for want of production of original Form 'C', was illegal. Reliance has also been made to the decision in Manganese Ore (India) Ltd Vs. Commissioner of Sales, Tax, Madhya Pradesh, reported in {1991 (83) STC 116}. 5. Per contra, before the Appellate Deputy Commissioner (CT) I (FAC), Chennai, departmental representative had submitted that original part of 'C' Form is mandatory for claiming concessional rate. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009, dated 14/7/2010, of the Appellate Deputy Commissioner (CT) I, FAC, Chennai, State of Tamil Nadu, represented by the Joint Commissioner (CT), Chennai (North) Division, Chennai, has preferred an appeal under Section 36 (1) and (2) of the then Tamil Nadu General Sales Tax Act. 8. Though reference has been made to Rule 12 (2) and (3) of the Central Sales Tax Act, 1956, Central Sales Tax (Registration and Turnover) Rules, 1957 and Rule 10 (2) of the Central Sales Tax (Tamil Nadu) Rule 1957, and contention has been made that the assessee, ought to have filed the original portion of forms, or duplicate of the declaration, where original has been lost, in order to avail the claim of exemption and further contention has been made that the decision made in Manganese Ore (India) Ltd Vs. Commissioner of Sales, Tax, Madhya Pradesh, {1991 (83) STC 116}, has no application to the case on hand, the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai, vide order, dated 25/10/2013, in S.T.A.No.86 of 2011, dismissed the appeal as hereunder:- "The Additional State Representative submitted that the original port of Form F is mandatory for claiming concessional rate. Further, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 25/10/2013, on the file of the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai, instant Tax Case Revision Petition is filed, on the following substantial questions of law:- "1. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that duplicate Form F is sufficient for availing concessional rate of tax? 2. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that though the decision reported in 83 STC 116 is related to C Form, F Form also comes under CST Act? 3. Whether on the facts and in the circumstances of the case, the Tribunal was right in not considering the Rule 10 (2) of the CST Rule which prescribed, under which circumstances duplicate forms can be accepted? 4. Whether on the facts and in the circumstances of the case, the Tribunal was right in not considering Rule 12 (2) and 12 (3) of the CST Rule which deals with the procedure to be followed for obtaining duplicate forms in lieu of the original declaration forms lost? 5. Whether the Tribunal was right in ignoring the fact that the dealer while replying to the pre-revision notice issued by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns contained in this Act, every dealer shall, with effect from such date as the Central Government may, by notification in the Official Gazette, appoint, not being earlier than thirty days from the date of such notification, be liable to pay tax under this Act on all sales of goods other than electrical energy] effected by him in the course of inter-State trade or commerce during any year on and from the date so notified: Provided that a dealer shall not be liable to pay tax under this Act on any sale of goods which, in accordance with the provisions of sub-section (3) of section 5 is a sale in the course of export of those goods out of the territory of India. (1A) A dealer shall be liable to pay tax under this Act on a sale of any goods effected by him in the course of inter-State trade or commerce notwithstanding that no tax would have been leviable (whether on the seller or the purchaser) under the sales tax law of the appropriate State if that sale had taken place inside that State. (2) Notwithstanding anything contained in sub-section (1) or sub-section (1A), where a sale of any goods in the course of inter-State trade or commerce has either occasioned the movement of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has purchased such goods for himself or for the purposes of such mission, consulate, United Nations or other body. (4) The provisions of sub-section (3) shall not apply to the sale of goods made in the course of interState trade or commerce unless the dealer selling such goods furnishes to the prescribed authority a certificate in the prescribed manner on the prescribed form duly filled and signed by the official, personnel, consular or diplomatic agent, as the case may be. (6A) Burden of proof, etc., in case of transfer of goods claimed otherwise than by way of sale. (1) Where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and for this purpose he may furnish to the assessing authority, within the prescribed time or within such further time as that authority may, for sufficient cause, permit, a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to in sub-section (1) (a) *** (b) *** are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for re-sale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture or processing of goods for sale or in the telecommunications network or in mining or in the generation or distribution of electricity or any other form of power; (c) are containers or other materials specified in the certificate of registration of the registered dealer purchasing the goods, being containers or materials intended for being used for the packing of goods for sale; (d) are containers or other materials used for the packing of any goods or classes of goods specified in the certificate of registration referred to in clause (b) or for the packing of any containers or other materials specified in the certificate of registration referred to in clause (c). (4) The provisions of sub-section (1) shall not apply to any sale in the course of inter-State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d dealer has been authorised to establish such unit or to develop, operate and maintain such special economic zone by the authority specified by the Central Government in this behalf. (7) The goods referred to in sub-section (6) shall be the goods of such class or classes of goods as specified in the certificate of registration of the registered dealer referred to in that sub-section. (8) The provisions of sub-sections (6) and (7) shall not apply to any sale of goods made in the course of inter-State trade or commerce unless the dealer selling such goods furnishes to the 10[prescribed authority referred to in sub section (4) a declaration in the prescribed manner on the prescribed form obtained from the authority specified by the Central Government under sub-Explanation For the purposes of sub-section (6), the expression "special economic zone" has the meaning assigned to it in clause (iii) to Explanation 2 to the proviso to section 3 of the Central Excise Act, 1944 (1 of 1944)." 14. In exercise of the powers conferred under Section 12 (2) & (3) of the Central Sales Tax Act, 1956, the Central Sales Tax (Registration and Turnover) Rules, 1957, have been framed. Rule 12 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the three portions of such Form of Certificate: I hereby declare that this is the duplicate of the declaration Form/Certificate No.----- signed on ------ and issued to ----- who is a registered dealer of ----------- (State) and whose Registration Certificate number is ------------ (4). The Certificate referred to in sub-Section (2) of Section 6 shall be in Form E-I, or Form E-II, as the case may be. (5). The declaration referred to in sub-Section (1) of Section 6 A shall be in Form F: Provided that a single declaration may cover transfer of goods by a dealer to any other place of his business or to his agent or principal, as the case may be, effected during a period of one calendar month: Provided further that if the space provided in Form F is not sufficient for making the entries, the particulars specified in Form F may be given in separate Annexures attached to that Form so long as it indicated in the Form that the Annexures form part thereof and every such Annexure is signed by the person signing the declaration in Form F: Provided further that Form F in force before the commencement of the Central Sales Tax (Registration and Turnover) (Second Amendment) Rules, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate in Form E-I or Form E-II. (b). The provisions of the second and third proviso to sub-rule (1) shall with necessary modifications, apply to certificates in Form E-I or Form E-II. [(10) (a) The declaration referred to in sub-section (4) of Section 5 shall be in form H and shall be furnished to the prescribed authority upto the time of assessment by the first assessing authority]. (b). The provisions of the Rules framed by the respective State Governments under sub-Sections (3), (4) and (5) of Section 13 relating to the authority from whom and the conditions subject to which any Form of Certificate in Form H may be obtained, the manner in which such Form shall be kept in custody and records relating thereto maintained and the manner in which any such Forms may be used and any such Certificate may be furnished in so far as they apply to declaration in Form C prescribed under these Rules shall mutatis mutandis apply to Certificate in Form H. [(11) The declaration referred to in sub-section (8) of Section 8 of the Act, shall be in Form I]. [(11 A) The certificate referred to in sub-Section (4) of Section 6 shall be in Form J and shall be furnished to the prescribed author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hstanding anything contained in the foregoing paragraph and in Rule 5, the selling dealer may, instead of attaching the Form of declaration/certificate to the return in Form 1 keep it in his custody subject to the condition that he submits all the Forms of declaration/Certificate relating to the year at any time before the final assessment of the accounts of that year." 17. Though Ms.Narmadha Sampath, learned Special Government Pleader contended that one of the conditions required to be satisfied by the purchasing dealer is that the Forms should have been lost and that the purchasing dealer, ought to have submitted an indemnity bond, in Form G to the notified authority, from whom the said Form was obtained, for such sum and only in the event of satisfying the above said requirement, the Assessing Authority can decide, as to whether such duplicate/certificate, can be accepted or not, and further submitted that in the case on hand, when purchasing dealer had failed to discharge the statutory obligation, refusal to accept the duplicate forms, cannot be said to be erroneous, we are not inclined to accept the said contention, for the simple reason that the Assistant Commissioner (CT) H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persuasive value and rightly applied. 22. Merely because the assessee had not made any submission, before the Assessing Officer that he had lost the original, it cannot be contended that he cannot made such submission, before the Appellate Authority, which is also a fact finding authority. 23. In State of Himachal Pradesh and others Vs. Gujarat Ambuja Cement Ltd., and another reported in 142 STC 1 (SC), while dealing wiht the belated filing of statutory forms, the Hon'ble Supreme Court, held as follows:- "It was urged on behalf of the appellant-State that declaration forms under the Central Act were not filed within the time and/or were defective. That does not in reality amount to non-compliance of a statutory provision. The respondent No.1 Company was claiming compensation and, therefore, had not filed the declaration forms. Some of the forms which were filed were treated to be defective. Undisputedly, before the revisional authority a prayer was made for grant of opportunity to rectify the defects, if any. That was turned down. It is to be noted that under Rule 12 (7) of the Central Sales Tax (Registration and Turnover) Rules, 1957 (in short the 'Registration Rules& ..... X X X X Extracts X X X X X X X X Extracts X X X X
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