9911796707
TMI Blog2019 (1) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... late Assistant Commissioner have been produced, they may, perhaps, serve the purpose. While the Tribunal states that consignment transfers are not reflected in the books of accounts, Counsel for the appellant has contended that this is a wrong statement. The book of accounts and the annual returns do disclose the turnover regarding consignment transfers. This aspect needs to be looked into. The burden of proving that the movement of goods was occasioned not by reason of sale is on the dealer and to discharge this burden he must furnish to the assessing authority a declaration duly filled by the principal officer of the other place of business of the dealer along with the evidence of despatch of such goods. The assessing authority to whom such a declaration is furnished has to then make an enquiry to find out whether particulars contained in the declaration furnished by the dealer are true. If upon making such an enquiry, the dealer is satisfied that there is no inter-State sale, he may at the time of, or at any time before the assessment make an order to that effect and the movement of the goods to which such declaration relates shall then be deemed for the purpose of the CST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the documents and to examine whether the appellant’s claim is genuine or not. The matter is remanded to the Assessing Officer. The Assessing Officer shall consider all the documents filed by the appellant - appeal allowed by way of remand. - CST/ 10/2013 - - - Dated:- 10-1-2019 - Mrs. Justice Ranjana P. Desai, Chairperson For the Appellant(s) : Mr. V.V. Sampathtkumar, Mr. V.V. Ramesh For the Respondent(s) : Mr. K.V. Vijaya Kumar, Mr. K.V. Ram Kumar for State of Tamil Nadu ,Mr. Nishe Rajen Shonker for State of Kerala ORDER The appellant, M/s Pacific Roofings (P) Ltd., is a manufacturer and dealer in Asphalt Roofing Sheets. The appellant s place of business is 54, Jawaharlal Nehru Salai, Ashok Nagar, Chennai-83. In this appeal, the appellant has challenged order dated 19.10.2012 passed by the Tamilnadu Sales Tax Appellate Tribunal ( the Tribunal for short) in STA No. 411/2005. Facts of the case could be gathered from the original assessment order dated 28.02.1998 passed by the Commercial Tax Officer, Saligramam Assessment Circle. For the year 1995-96, the appellant had reported a total and taxable turnover of ₹ 55,49,165.48 as per the Form I return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not inclined to accept the appellant s claim for exemption in respect of ₹ 2,30,73,474.00 projected as value of goods despatched to inter-State consignee. The Assessing Officer noted that the appellant had not filed necessary forms in support of its inter-State sales of ₹ 55,49,165.00 reported in its Form-I returns. The appellant had filed the following statement before the Enforcement Officer: Consignment turnover - ₹ 2,36,39,542.00 CST sales - ₹ 58,38,570.00 Total - ₹ 2,94,78,112.00 Turnover as per Accounts - ₹ 2,88,13,824.00 The Assessing Officer observed that since there was shortfall in the accounts produced by the appellant earlier for check and figures furnished by the appellant to Enforcement Wing officers, he proposed to reject turnover figures accounted for and reported in Form-I as incorrect and incomplete and determine the inter-State sales turnover on the basis of the figures furnished by the appellant to the Enforcement Wing. He proposed to determine ₹ 2,94,78,112 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer therefore determined the taxable turnover as ₹ 2,94,78,112/based upon statement filed by the appellant before the Enforcement Wing Officer. Penalty was also levied Being aggrieved by this order, the appellant filed appeal being CST AP 63 of 98 before the Appellate Assistant Commissioner (CT) (vi). The appellant pointed out to the Appellate Assistant Commissioner that the Assessing Officer has wrongly assessed the turnover of ₹ 2,94,78,112/- at 11.6% and 4% as follows: i) ₹ 2,36,39,542/- at 11.6% disallowing Consignment sales. ii) ₹ 55,30,385/- at 4% covered by C Forms. iii) ₹ 3,08,185/- at 11.6% not covered by C Forms. The main contention of the appellant was that the appellant had all the necessary documents and the appellant may be given a chance to produce those documents. The Appellate Assistant Commissioner held that the assessment made on ₹ 58,38,570/- ( ₹ 55,30,385/- + 3,08,185/-) does not call for interference. So far as remaining turnover of ₹ 2,36,39,542/- is concerned he observed that the appellant had made a statement that it had all the required documents and at the time of hearing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer observed that the appellant did not file any objections nor did it produce any record. In the circumstances, the Assessing Officer confirmed the original assessment order dated 28.02.1998. Being aggrieved by this order, the appellant preferred an appeal i.e. A.P.C.S.T. 4/2003 before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner in his order dated 18.08.2004 noted that the appellant had produced the necessary record which was required by the Assessing Officer at the time of hearing of the appeal. The Appellate Assistant Commissioner referred to those documents and discussed them. The said observations are very important for the disposal of this appeal. Hence it is necessary to give its gist. The gist is as under: (a) The appellant has filed copies of Assessment Orders in certain cases. These orders show that the consignments received from the appellant had been sold and taxes have been paid in the respective States. (b) The appellant has filed Form F declarations. They contain details furnished by the appellant such as invoice number and date, GC number and date, copies of invoices, copies of Goods Carriers Agency Agreements, Assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d they were filed by the appellant. It is pertinent to note that in the original assessment order dated 28.02.1998 the Assessing Officer has confirmed that the appellant had filed (1) Statement of consignment sales showing monthwise and agentwise details of consignment despatches along with particulars of G.C. notes. (2) Consignment sale pattials received for the inter-State agents. (3) Copies of consigner copy of transport document (L.R.) (4) Copies of consignment agreements. Thus the consignment agreements were produced by the appellant. The Appellate Assistant Commissioner emphasized that the goods in question were not specific to any contract or earmarked for specific buyers and that there was no inextricable link between the indents and the movement of goods. He also observed that in stray cases bills were raised before the consignment despatches but that does not alter the character of consignment sales. He further observed that merely because the goods were sold on the same date of arrival or two or three days thereafter no inference can be drawn that there was no stock transfer. Having considered all the documents and particularly the documents filed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r while remanding the matter. The Tribunal observed that the appellant s Counsel produced copies of assessment orders of some of its agents in other States but did not produce copies of documents related to the present dispute. The Tribunal further observed that the appellant did not report the transactions in the monthly returns under the CST Act and in the books of accounts. The Tribunal took note of the Assessing Officer s observations that there were instances of consignment despatches without any consignment notes. The Tribunal observed that the appellant had not produced main accounts for the year 1995-96 except stockregister and other subsidiary records. The Tribunal further observed that the appellant has not produced day book, ledger for the year 1995-96 before the Enforcement Wing Authority from which it could have been verified whether the consignment transactions had been properly entered into the accounts or not. The Tribunal concluded that since the appellant willfully did not disclose turnover, levy of penalty was warranted and was in order. Unfortunately, the Tribunal s order does not discuss all the documents which are stated to have been produced before the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was, therefore, necessary for the Tribunal to discuss those documents and give a finding whether those documents disclose the required details or not. It is possible that the documents in a particular format may not have been produced but if the details can be gathered from some other documents like consignment agreements, Form F declarations, sale pattials etc. which according to the Appellate Assistant Commissioner have been produced, they may, perhaps, serve the purpose. The Assessing Officer has referred to the clause in the consignment agreement which is as follows. In case goods become un-saleable, the agent shall be wholly liable to make the payment. The Assessing Officer has observed that transfer of ownership is inherent in this clause. The Tribunal has concurred with this view. The Appellate Assistant Commissioner in his order observed that there are other clauses in the agreement which show that the goods were sent only for sale on commission basis by other State agents. It was therefore necessary for the Tribunal to consider all the clauses of the consignment agreement and then opine whether transfer of ownership was inherent in them. While the Tribunal states t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must furnish to the assessing authority a declaration duly filled by the principal officer of the other place of business of the dealer along with the evidence of despatch of such goods. The assessing authority to whom such a declaration is furnished has to then make an enquiry to find out whether particulars contained in the declaration furnished by the dealer are true. If upon making such an enquiry, the dealer is satisfied that there is no inter-State sale, he may at the time of, or at any time before the assessment make an order to that effect and the movement of the goods to which such declaration relates shall then be deemed for the purpose of the CST Act to have been occasioned otherwise than as a result of sale. Such order can be passed before the assessment or along with the assessment. In the event, the dealer fails to furnish such declaration by reason of legal fiction such movement of goods would be deemed for all purposes of the CST Act to have been occasioned as a result of sale. Section 6A of the CST Act fell for the consideration of the Supreme Court in Ashok Leyland Ltd versus State of T.N. and Another (2004) 3 SCC 1 . The relevant portions of the judgment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. STO 16 (1999) 76 STC 211 (ker) as under: A plain reading of Section 6-A(2) of the Central Sales Tax Act points out that in cases where the dealer exercises the option of furnishing the declaration (F forms), the only further requirement is that the assessing authority should be satisfied, after making such enquiry, as he may deem necessary, that the particulars contained in the declaration furnished by the dealer are true . The scope or frontiers of enquiry, by the assessing authority under Section 6-A(2) of the Central Sales Tax Act is limited to this extent, namely, to verify whether the particulars contained in the declaration (F forms) furnished by the dealer are true . It means, the assessing authority can conduct an enquiry to find out whether the particulars in the declaration furnished are correct, or dependable, or in accord with facts or accurate or genuine. That alone is the scope of the enquiry contemplated by Section 6-A (2) of the Act. On the conclusion of such an enquiry, he should record a definite finding, one way or the other. As to what should be the nature of the enquiry, that can be conducted by the assessing authority under Section 6-A(2) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd date of railway Receipt or Postal Receipt or Goods Receipt with trip sheet of lorry or any other documents indicating the means of transport .. Date on which delivery was taken by the transferee ... The above statements are true to the best of my knowledge and belief. (Signature) It is clear from a bare reading of the above form that it provides sufficient information about the transaction. The Assessing Officer can get sufficient clues from the details furnished in the Form to conduct an enquiry. He can ask for further documents also. Besides, as per Section 6A(1) of the CST Act, the dealer is required to file evidence of despatch of such goods also along with the declaration. There is no indication in the order of the Assessing Officer that he conducted any such enquiry and made any order. It is for the Assessing officer to decide the nature of inquiry he wants to conduct. There is no particular mode or procedure prescribed for this enquiry. When Form F declarations are filed he has to either accept them as true or reject them as untrue if his inquiry discloses so. He should record a finding one way or the other. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to a conclusion whether the claim of stock transfer is genuine or not. If almost in all transactions the consignments are found to have been sold in the same quantity in which they were sent on the same day or on the next day, it may be a pointer to inter-State sale. If regularly the goods are not offloaded at the agent s premises or directly sent to the buyer that could be another pointer to inter-State sale because such repeated transactions cannot be described as a co-incidence. But one circumstance by itself may not be sufficient. At the cost of repetition, it must be stated that the Assessing Officer has to take an overall view of the matter and draw his conclusion. In this case it bears repetition to state that the Appellate Assistant Commissioner in his order dated 18.08.2004 has referred to number of documents furnished by the appellant. The Tribunal, in the impugned order, has, however, not discussed them but come to the conclusion that the documents were not so furnished. The record does not show that the Assessing Officer has conducted any enquiry to find out whether Form F declarations are true or not. In the circumstances, in the peculiar facts of this case t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
