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TMI Blog2022 (11) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... by the aforesaid order, the Petitioner filed an Appeal before the 2nd Respondent in A.P.No.CST.No.133/96. The 2nd Respondent vide order dated 21.06.2000 partly allowed and partly remanded the case with the following observations: "In this case, the appellants have factually dispatched the aluminium wire rod to the dealers at Mysore in Form-XX delivery Note Vide No.90619/14.9.97 and 901625/20/10/97. The dispatch of goods comes to Rs.8,83,814.00. There is no ambiguity in this dispatch on loan basis. Whereas the learned Assessing Officer in his assessment proceedings stated that the returned goods does not tally with the accounts of the appellants. Whereas in this case on hand, the appellants stated that this has not been tallied during the year 92-93. Whereas in the subsequent years it has been tallied. The learned Assessing Officer in his proceedings at Page.4 inferred that there are difference in weight, materials allegedly returned. Whereas in this case on hand the learned Authorized Representative during the course of argument has placed evidences relating to the return of goods year by year. During the year 93-94 the balance due from the loanee was 38.212. MT Similarly, dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced. As per the above definition a transfer, otherwise than in pursuance of a contract, would also be a sale. In the absence of contract, the two transactions such as the dispatch of goods by the respondents and the receipt of the goods from other state dealer are independent transactions and are not linked inextricably by any condition or stipulation, supported by any valid document. Having regard to this aspect,we find that the order of the Appellate Assistant Commissioner is vague and mere repetition of the version of the respondent, in support of them and is therefore set aside. The order of the assessing authority is restored." 4. The case of the petitioner is that there was a loan transaction between the petitioner and a dealer from Mysore and that on 14.09.1993 and on 20.10.1993, the petitioner had despatched 9.416 tons and 9.580 tons of Aluminium wire rod on loan basis and that the loanee had returned the same on 20.03.1994 and 06.03.1994. The facts of record also indicate that the petitioner said to have received 9.558 tons as against 9.416 tons as against the supply of 9.580 tons, the petitioner is said to have received 9.795 tons on these two dates. 5. The further case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said loan transaction. Once the documentary evidence in the form of registers of the assessee as well as that of its sister concerns disclose that loan transaction was fully discharged by the assessee, there was no occasion for the assessing authority to reopen the assessment under the guise that the claim of loan transaction by the assessee was not fully established. Therefore, the conclusion of the Tribunal merits acceptance for the simple reason that the loan transaction in the case on hand, by any stretch of imagination, cannot be construed as a sale transaction in order to impose levy of tax. 6. Learned counsel for the petitioner has also placed reliance on the decisions of the Hon'ble Supreme Court in the State of Madras vs. Gannon Dunkerley & Co (Madras) Ltd reported in (1958) 9 STC 353 and Devi Dass Gopal Krishnan Etc. & others vs. State of Punjab and others reported in (1967) 20 STC 430, and submitted that where there was no sale and therefore, the transactions are outside the purview of the respective Sales Tax Act. 7. Learned counsel for the petitioner has also submitted that the imposition of penalty under Section 12(3) of the TNGST Act, 1959 as made applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplying goods is entitled to the value of goods transferred which is determined or determinable in the manner prescribed. 11. The above decision was rendered in the context of Section 2(h) of the U.P. Sales Tax Act, 1948 read with U.P. Wheat Procurement (Levy) Order, 1959 issued under Essential Commodities Act, 1955. As per the aforesaid order, every licensed dealer was required to sell wheat to the State Government at the controlled price. 50% of wheat held in stock or procured or purchased was delivered to the Controller or to such other person as may be authorised by the Controller to take delivery on his behalf. 12.The Hon'ble Supreme Court referred to few decisions including its earlier decisions in Indian Steel and Wire Products Ltd. Vs. State of Madras, AIR 1968 SC 478 : (1968) 21 STC 138 and in Andhra Sugar Ltd. and another Vs. State of Andhra Pradesh and others, AIR 1968 SC 599 : (1968) 21 STC 212. 13. The Hon'ble Supreme Court in Chhitter Mal Narain Das case referred to supra held that there was no contract between the assessee and the State, pursuant to which, the goods were sold within the meaning of the U.P. Sales Tax Act, 1948 as liability was imposed to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpressions, means any transfer of property in goods by one person to another for cash or deferred payment or for any other valuable consideration, and includes,- (i) a transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (ii)a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (iii)a delivery of goods on hire-purchase or any system of payment by instalments; (iv)a transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (v) a supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; (vi)a supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, but does not include a mortgage or hypothecation of or a charge or pledge ..... 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