State of Tamil Nadu vs Golden Refineries (P) Ltd.

F.M. Ibrahim Kalifulla, J.—The Revenue has come forward with this revision, challenging the order dated April 10, 2003. passed by the

Sales Tax Appellate Tribunal (Additional Bench), Coimbatore in CTSA No. 1/ 2001. The Tribunal affirmed the order of the Appellate Assistant

Commissioner dated February 7, 2000.

The brief facts are that the respondent is a dealer in sunflower oil. According to the revision petitioner, for the assessment year 1994-95, the

assessing authority received bills and delivery notes from the Assistant Commissioner (CT) (Enforcement), Salem, regarding movement of oil from

Karnataka to Tamil Nadu, which were verified with the accounts of the respondent herein. It came to light that there were 12 suppliers of

sunflower oil of the respondent, which, according to the assessing authority, were not accounted for by way of inter-State purchase for the year

1994-95.

When the respondent was questioned about the transaction of those 12 consignors, the respondent took the stand that of the 12, there was no

transaction at all in respect of serial Nos. 1 to 3 and in respect of serial Nos. 4 to 12, the goods were all returned back then and there since the

same were found to be of poor quality.

The assessing authority, by referring to the communication received from the consignors 1 to 3, held that the same contradicted over the stand of

the respondent/assessee and that in respect of rest of the consignors falling under serial Nos. 4 to 12, though the respondent produced

acknowledgement from the representative of those consignors for having received the goods, the further burden still rest on the respondent to

prove that the goods were really returned back to the consignors. On that basis, the assessing authority assessed the tax liability and also imposed

penalty at 150 per cent of the tax liability.

The Appellate Assistant Commissioner held that once the acknowledgement by the representative of the consignors was available on record in

proof of having taken back the goods, that cannot be a sale as contemplated u/s 3 of the Central Sales Tax Act. Therefore, if the

respondent/assessee is still to be held liable, the burden was solely on the revenue to establish the factum of sale involved. The Appellate Assistant

Commissioner has set aside the order passed by the assessing authorities.

The Tribunal, when affirming the order of the Appellate Assistant Commissioner, held in paragraph 4 of its order was follows :

We have heard the arguments of both the sides and perused the connected material records. The learned Additional State Representative

argued for sustaining the assessment made by the assessing officer. The learned Authorised Representative for the respondent argued that at the

time of verification itself the dealer in statement dated December 17, 1995 has stated that the consignment mentioned in items 1, 2 and 3 were not

purchased by them and in respect of consignments mentioned in item Nos. 4 to 12, they had returned back the goods to the consignors due to

poor quality and in support of their claim for return of goods, they had furnished xerox copies of letter dated November 21, 1994, November 14,

1994, September 18, 1994, September 28, 1994, November 22, 1994, November 23, 1994, November 25, 1994 and November 18, 1994 in

which it is stated that the goods were returned back and which letters were addressed to the consignors. In token of having rejected those

consignments of the respondent had obtained acknowledgement from the representative of the consignor who accompanied the goods and the

rejection made by the Revenue that there was no evidence for the return of goods is not in order. The learned Authorised Representative produced

copies of the delivery note and also the letters addressed to the consignor according to which the respondent has returned the goods as they are

not suitable for them and the quality is very poor. To prove that the 9 consignments were returned due to the poor quality the respondent has

obtained signature from the representative of the consignor who accompanied the goods which is available in the assessment file. The Deputy

Commercial Tax Officer (Enforcement) Dharmapuri, has enquired the respondent on December 17, 1995 and the respondent had categorically

stated that items referred from 1, 2, 3 do not relate to them and the balance 9 items were returned back due to poor quality. Relying on [1994] 95

STC 333 (Mad), in the case of State of Tamil Nadu v. S. P. Meyyammai Achi, the Appellate Assistant Commissioner has allowed the appeal

stating that the Revenue has not let in any evidence that the respondent had taken delivery of the goods and sold them without bringing them into

account. In State of Tamil Nadu v. S. P. Meyyammai Achi [1994] 95 STC 333 (Mad) it is held as follows :

It is not for the assessee to prove beyond doubt that he had not taken delivery of the consignment and sold it and it is up to the Department to

prove that the appellant has taken deliver)'' of the goods and sold without bringing them into account.

Burden of proof that there is a taxable sale lies upon the taxing authority according to Hardeodas Jagannath Vs. State of Assam and Others, and

State of Orissa v. Narahari Pradhan [1972] 30 STC 558 (Ori). Since the Department has not proved that the purchase of S. F. oil, coconut oil

and groundnut oil amounting to Rs. 40,27,705 relates to the respondent, the Appellate Assistant Commissioner has rightly set aside the assessment

and consequential penalty.

To conclude, the State appeals stands dismissed.

We have heard Mr. Haja Naziruddin, learned Special Government Pleader and Mr. G. Rajagopalan, learned Senior Counsel appearing for the

respective parties.

Having perused the impugned order of the Tribunal, we are of the view that what has been decided by the lower appellate authorities were all

disputed questions of facts relating to inter-State sale falling u/s 3 of the Central Sales Tax Act. While examining the findings rendered by the

Appellate Assistant Commissioner as affirmed by the Tribunal, we find that the lower appellate authorities have chosen to accept the stand of the

respondent-assessee based on the relevant documents found in the assessment file. With reference to those documents when such a categoric

finding came to be recorded by the Tribunal, we are not in a position to interfere with the said findings in the absence of any other valid material

displayed by the Revenue which was omitted to be considered by the lower appellate authorities.

Therefore, in the absence of any illegality pointed out in the approach of either the Appellate Assistant Commissioner or the Tribunal, while

appreciating the disputed questions of fact, we are not inclined to interfere with the findings of the lower appellate authorities. In the absence of any

question of law, the orders impugned cannot be revised u/s 38 of the Tamil Nadu General Sales Tax Act. We therefore do not find any scope to

grant any relief in this tax case revision preferred by the Revenue. The revision fails and the same is dismissed. No costs.