W.A. Shah Enterprises (P) Ltd. vs District Forest Officer and Others

P. Shanmugam, J.—Petitioners in the writ petitions have prayed for the issue of a writ of mandamus to direct the second respondent to

decide the nature of the sale, i.e., inter-State or local, of sandalwood by the first respondent to the petitioner in the auction sale held by the first

respondent on June 19, 1996 and July 6, 1994 respectively, without reference to the proceedings of the Special Commissioner and the

Commissioner of Commercial Taxes dated September 16, 1998.

In my view, these writ petitions are not maintainable and are filed in abuse of the process of this Court. The petitioner has earlier preferred Writ

Petition Nos. 183 of 1995 and 1345 of 1996 before this Court and that they have stated that they are not aware of the outcome of the writ

petitions. Whereas, it is seen that the writ petitions were dismissed by a common order of this Court dated April 18, 2000 in a batch of writ

petitions in W.P. Nos. 2320, etc., of 1994 after contest and as many as 20 writ petitions were disposed of along with the petitioner''s writ petitions

and this again is following the earlier batch of writ petitions. These petitioners, who are auction purchasers of sandalwood, are aware of the

outcome of the writ petitions. Therefore, it is incorrect to say that they are not aware of the outcome of the writ petitions and hence, the present

writ petitions, without verifying the dismissal of the earlier writ petitions on the very same ground on the same cause of action is nothing but an

abuse of the process of the court.

Petitioner has not challenged the proceedings of the Special Commissioner and Commissioner of Commercial Taxes dated September 16,

1998. Without challenging the proceedings, the petitioner cannot seek for a direction not to reply on the said direction.

On merits, the question raised by the petitioner that the purchase of sandalwood in the auction is inter-State and not local has been decided

against the petitioner by me in a batch of writ petitions in W.P. Nos. 8343, etc., of 1999 by an order dated November 22, 1999 and in W.P. Nos.

2320, etc., of 1994 by order dated April 18, 2000.

The Orissa High Court in Similipahar Forest Development Corporation Limited v. State of Orissa [1995] 96 STC 627 dealing with the auction

sale of timber and the question whether it is inter-State sale or local sale, held that it is a local sale. Their lordships were dealing with a case of sale

of timber by public auction. The terms and conditions of the auction were published inviting intending purchasers to participate in the auction and

thereafter the auction sales were knocked down in favour of the highest bidders. There were some purchasers who were not the residents of the

State of Orissa and therefore, the commodities moved out of Orissa either by lorry or by rail. The assessees wanted to treat their sales as inter-

State sales, but the Sales Tax Officer rejected their stand and treated the sales as local sales on finding that the sales transaction was completed

within the State of Orissa. According to the assessees, the sale occasioned movement of goods from one State to another and therefore, the sale

should be deemed to have taken place in the course of inter-State trade. A sale can be inter-State sale if the movement of goods is the result of a

covenant in the contract of sale or is an incident of that contract. In that case, their lordships held that there is no conceivable link between the sale

and the movement of goods and held that it is only a local sale. In my view, this decision squarely applies to the facts of the present case. Here

also, it is the case of public auction and the petitioner is a successful bidder and as per the terms and conditions of the sale, it cannot be stated that

the movement of goods had occasioned from one State to another as a result of any covenant in the contract of sale.

In Ashok Leyland Ltd. v. Union of India [1997] 105 STC 152 the Supreme Court held that the question whether the sale (of the vehicle) has

taken place in the State where it was delivered or not was a question of fact. Whether the contract of sale was in respect of specified goods or

ascertained goods or whether it was in respect of unascertained or future goods and if the latter, when appropriation took place were all questions

of fact. Their lordships further held that when a dealer claims that certain goods have been moved from one State to another and such movement

had occasioned otherwise than as a result of sale, the Burden of proving the same lies upon him.

The Special Commissioner and Commissioner of Commercial Taxes in his letter dated September 16, 1998 to the Principal Chief Conservator

of Forests in reference to the clarification sought for has clearly stated that the Forest Department is a dealer as per the provisions of the Tamil

Nadu General Sales Tax Act, 1959 and has to file a return and pay the taxes demanded. As far as the successful bidder in the auction is

concerned, he is a dealer in Tamil Nadu and the sale by the Forest Department is a local first sale and there is no dispute on this point. Regarding

the successful bidder in the auction from outside the State, it has already been clarified by the office in their letter dated July 10, 1996 that since the

sale is completed on the fall of the hammer, it is local sale coming under the purview of the Tamil Nadu General Sales Tax Act.

Petitioners are trying to reopen the issues already concluded and that too as against the auction taken place in the years 1994 and 1998, after an

inordinate delay. It is further seen that every year raising the same contentions writ petitions are moved on the very same plea of inter-State sale in

order to obtain interim orders to furnish bank guarantee in spite of final orders having been passed in the earlier writ petitions on merits. The

petitioners are emboldened to move the second writ petition after the dismissal of the earlier writ petition to take a chance in order to get an interim

order only. By this process, they need not pay the 8 per cent tax which runs into several lakhs for the present (the bank guarantee need not be

encashed which has to be done after the dismissal of the writ petition). This is nothing but an abuse of the process of this Court.

For the above reasons, I have no hesitation in holding that the writ petitions are not maintainable and liable to be dismissed. The writ petitions

are accordingly dismissed. No costs. Consequently, W.M.P. Nos. 22101 and 22102 of 2001 are closed.