9911796707
TMI Blog2018 (4) TMI 1381X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs - it is a clear case of suppression of manufacture and disposal of the goods in question i.e. 'Paclitaxel'. It appears that during the course of arguments before the Tribunal the assessee took the stand that the stock transferred quantity is 1050 grams instead of 1040 grams and the donated quantity is 31 grams instead of 25 grams. The Tribunal considered the entire facts and evidences on record and recorded a finding of fact that there was no stock transfer and Form F procured by the revisionist-assessee from its unit situate at Baddi, District - Solan on 24.11.2003 is merely to cover up the evasion - The Tribunal has given sufficient reasons to disbelieve the contention of the revisionist and to uphold the findings of the Assessing Authority and the 1st Appellate Authority - The assessee took a vague stand before the Tribunal merely in written argument that balance quantity of 443 grams 'Paclitaxel' has either been used in production or it is available in stock. The assessee could not substantiate his claim from the books of accounts. An analysis of the relevant provisions of the Section 6A of Central Sales Tax Act and the Rules framed thereunder shows that the initial burden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department received certain information from the Central Excise Department regarding manufacture and certain transaction of the goods 'Paclitaxel' which is a raw material being used in manufacture of medicine for treatment of Cancer. On the basis of this information, proceedings under Section 21 of the Act were initiated. An ex-parte Assessment Order under Section 21 of the Act was passed on 27.9.2003. The assessee moved an application for recall of the ex-parte order under Section 30 of the Act. The ex-parte Assessment Order was recalled and the case was fixed for hearing. The assess again did not appear. Consequently, again an ex-parte order dated 8.4.2004 was passed. The assessee again moved an application under Section 30 of the Act and thereupon the ex-parte Assessment Order dated 8.4.2004 was recalled by order dated 20.5.2004. 6. Before the Assessing Authority, in proceedings under Section 21 of the Act, the Assessee admitted total quantity of 'Paclitaxel' manufactured during the Assessment Year 2000-01 in its Sahibabad (U.P.) Unit to be 1524 grams. The assessee took the stand that out of this quantity they have transferred 1040 grams to their unit at Bad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Authorities. The quantity on which the enhanced valuation was rejected by the Settlement Commission, could not have been modified by the Sales Tax Authorities. (iv) The valuation done by the Central Excise Authorities applying deeming provision for transfer of goods for captive consumption, cannot be adopted by the Sales Tax Authorities. (v) Once the Central Excise Duty has been paid on stock transfer quantity, then it cannot be said to be sale. (vi) No enquiry was done by the Sales Tax Department to disprove the fact of stock transfer as established in Central Excise proceedings. (vii) During the assessment year in question to prove stock transfer, submission of Form-F was not mandatory. (viii) All the transactions of the goods in question could not have been clubbed together to hold it to be deemed sale under Section 6-A of the Central Sales Tax Act, 1956. Each transaction should have been examined separately for 1050 Gms. 'Paclitaxel'. (ix) The assessing authority has travelled beyond the show cause notice, inasmuch as, the show cause notice was issued on the basis of information collected from the Central Excise Department with respect to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to have been sold within the State of U.P. which was undoubtedly the evaded sale. He submits that the findings recorded in the impugned order are findings of fact based on consideration of relevant evidences on record. Therefore, the revision deserves to be dismissed. Discussion and Findings 10. I have carefully considered the submission of learned counsel for the parties and perused the record. Original assessment records have also been produced before me pursuant to the order dated 15.2.2018 which has also been perused. 11. The revisionist-assessee is a big company. It is engaged in manufacture and sale of various commodities. At the time of original assessment proceedings, the assessee disclosed stock transfer of ₹ 178,56,45,444/- and also filed 254 Form 'F' to establish stock transfer. He had not disclosed the manufacture and sale or alleged stock transfer of 'Paclitaxel' during the course of original assessment proceedings. This Court specifically asked the learned counsel for the revisionist-assessee, yesterday and today also to point out from any evidence that the assessee has disclosed the manufacture and sale or the alleged stock transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer of 1040 grams and alleged donated quantity of 25 grams 'Paclitaxel'. It appears that during the course of arguments before the Tribunal the assessee took the stand that the stock transferred quantity is 1050 grams instead of 1040 grams and the donated quantity is 31 grams instead of 25 grams. The Tribunal considered the entire facts and evidences on record and recorded a finding of fact that there was no stock transfer and Farm F procured by the revisionist-assessee from its unit situate at Baddi, District - Solan on 24.11.2003 is merely to cover up the evasion. The Tribunal has given sufficient reasons to disbelieve the contention of the revisionist and to uphold the findings of the Assessing Authority and the 1st Appellate Authority. The Tribunal also found that the alleged dispatch could not be proved by the assessee in terms of Section 6-A of the Central Sales Tax Act. For sufficient reasons recorded in the impugned order, the Tribunal disbelieved the story set up by the assessee for donating 25 grams or 31 grams 'Paclitaxel' to Dabur Research Foundation. The assessee took a vague stand before the Tribunal merely in written argument that balance quanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 19.5.2000 and 440133 dated 18.5.2000. Subsequently, the alleged certificate of Dabur Research foundation dated 8.12.2003 for 25 gram 'Paclitaxel' of value ₹ 1,16,000/- was submitted in reassessment proceedings but before the Tribunal the assessee took the stand that 31 gram 'Paclitaxel' valuing ₹ 1,85,210/- was transferred to Dabur Research foundation. On being asked the assessee stated that invoice No.440039 dated 6.4.2000, ₹ 69,210/- was inadvertently not mentioned. The explanation submitted is afterthought. The alleged donation of 31 grams 'Paclitaxel' is not proved. (ix) Balance quantity of 443 gram 'Paclitaxel' was stated before the Tribunal by the assessee to have been used either in manufacture or is available in stock at Sahibabad. No such explanation or disclosure was made by the assessee either before the assessing authority in proceedings under Section 21 or before the First Appellate Authority. (x) By invoice No.2680 dated 6.12.1997 the assessee had sold 'Paclitaxel' to Biological India Ltd. Hyderabad @ ₹ 28,000/- per gram. As per report of the Excise Department the value of 'Paclitaxel' is & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long with such declaration, the dealer is required to furnish the evidence of such dispatch of goods by reason of Act 20 of 2002. In the event, if it fails to furnish such declaration, by reason of legal fiction, such movement of goods would be deemed for all purposes of the said Act to have occasioned as a result of sale. Such declaration indisputably is to be filed in Form F. The said form is to be filled in triplicate. The prescribed authority of the transferee State supplies the said form. The original of the said form is to be filed with the transferor State and the duplicate thereof is to be filed before the authorities of the transferee State whereas the counterfoil is to be preserved by the person where the agent or principal of the place of business of the company is situated. 45. When the dealer furnishes the original of Form F to its assessing authority, an enquiry is required to be held. Such enquiry is held by the assessing authority himself. He may pass an order on such declaration before the assessment or along with the assessment. Once an order in terms of Sub-Section (2) of Section 6-A of Central Act is passed, the transactions involved therein would go out of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken into consideration. (See Killick Nixon Ltd. v. CIT (2003) 1 SCC 145). 74. Section 6-A of the Act although provides for a burden of proof, the same has to be read in the context of Section 6 of the said Act. Section 6 provides for liability to pay tax on inter-State sales. Any transaction which does not fall within the definition of 'sale' would not be exigible to tax, the burden whereof would evidently be on the assessee. We have noticed hereinbefore that whereas prior to the amendment in Sub-section (1) of Section 6-A the dealer had an option of filing a declaration in Form-F; after such amendment, he does not have such option, insofar as in terms of the amended provision, if the dealer fails and/or neglects to file such a declaration, the transaction would be deemed to be an inter-State sale. It is to be noticed that for the aforementioned purpose also, Parliament advisedly used the expression 'deemed'. If the expression 'deemed' is interpreted differently, an incongruity would ensue. 75. In absence of any indication that Parliament while enacting Sub- section (2) of Section 6-A did not intend to make the deeming provisions to be a conclusive fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings the assessee disclosed stock transfer of certain other goods amounting to ₹ 178.56 crores and also filed 254 Form - 'F' in original to claim stock transfer. The mode of transportation of the goods in question mentioned in the invoices and the G.Rs. were found to be contradictory as per facts noted by the Tribunal in the impugned order. No evidence of delivery of goods allegedly sent through courier 'DDCT' could be submitted by the assessee. He shown transportation of this costly goods of value of about ₹ 29,000/- per gram covered by three invoices as mentioned in para 12 above for quantity of 320 grams, 320 grams and 150 grams respectively, through different trucks without showing any freight and insurance, which were correctly found to be unproved for detail concurrent findings of fact recorded by the fact finding authorities including the Tribunal. No legally acceptable ground has been made out by the assessee to require this Court to interfere with the findings of fact for not accepting the alleged stock transfer of the goods in question. Therefore, the impugned order of the Tribunal requires no interference by this Court in revisional jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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