IN THE HIGH COURT OF KERALA AT ERNAKULAM
ST Rev No. 129 of 2005()
1. M/S.METRO TYRES LTD., V/944,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY
... Respondent
For Petitioner :SRI.VIJAYAN. K.U.
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :04/12/2006
O R D E R
P.R.RAMAN & K.P.BALACHANDRAN,JJ.
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S.T.Rev.No.129 of 2005
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Dated this the 4th day of December, 2006
J U D G M E N T
Raman, J
The assessee is a registered dealer borne on the rolls of the
Assistant Commissioner, Assessment, Special Circle, Mattanchery.
For the assessment year 95-96, he filed a nil return. The books of
accounts of the dealer were collected and verified by the
Assessing Officer. It was found that an amount of Rs.3,35,369/-
was not supported by F Form and in the absence of any
documents it is treated as inter state sale. Likewise, the defective
fans said to have been sent to Noida in UP for an amount of
Rs.10,66,858/- was contended to be purchased from out of the
state. In the absence of supporting evidence it was treated as
inter state sale.
2. However, the branch transfer effected to outside the
state for Rs.2,67,373 was found to be supported by F Form and
accordingly exemption was granted. Accordingly, it was proposed
to complete the CST assessment for 95-96 estimating the
STRV No.129/2005
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interstate sale on Rs.14,02,227/- and tax at the rate of 11%. On
issuing notice, the assessee filed his objection contending that the
rate of defective for Rs.3,35,360/- is properly covered by
documents, but the assessee did not however produced F form for
the said transaction before the Assessing Officer till the order of
assessment was passed. In the absence of F Form, the claim of
the assessee in this regard was disallowed. The contention that an
amount of Rs.10,66,858/- representing value of the defective fans
sent to Noida, it was found that the assessee purchased the
goods. For that also, there was no F Form produced. Hence this
claim was also rejected. The inter state sales tax due was
accordingly assessed. Aggrieved thereby, the petitioner preferred
an appeal before the Deputy Commissioner (Appeals). The main
challenge was that the return of the defective fans to the
consigner outside the Sate was on proper documents. According
to him, he produced all the documents before the Assessing
authority which has not been properly considered by him. The
defective fans for Rs.10,66,858/- were sent to the factory at Noida
under instructions from the sellers and that the transfer was
supported by proper documents and the Assessing Officer has not
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considered the evidence so produced. These contentions were
examined by the appellate authority. It was found that both for
repair work and return, however the interstate transfer from
Kerala was not supported by declaration in F Form and as such
the assessee was not entitled to the benefit of treating this as a
branch transfer. The appellate authority found in such
circumstances, that there is no merit in this appeal and dismissed.
3. The appellant further challenged the correctness of
that order in second appeal before the Tribunal. The Tribunal
again considered this matter. The finding of the first appellate
authority was extracted in page 4 of the Tribunals order. The
Tribunal after referring to the appellate order found that the
appellant had not produced F Form to produce stock transfer,
even though that by itself may not be sufficient to prove stock
transfer and that it is the physical transport of goods under
Section 6A of the C.S.T.Act. Since the appellant did not produce
any documents to prove physical transfer of goods across the
boundary and in the absence of F Form, claim was disallowed and
the appeal was also dismissed as the Tribunal did not find any
merit in the appeal. It is challenging these orders by the
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authorities below, that the revision is filed.
4. The learned counsel appearing for the revision
petitioner contended before us that various other documents
were also produced before the Tribunal, but there is nothing
discerning from the file that any such documents were produced.
At any rate he has no case that ‘F’ Forms relating to the transfer
of goods was produced.
5. Admittedly, when the petitioner’s claim is that the
defective goods were transferred to their main office at Noida in
UP, he was bound to support the same by producing F Forms. The
assessee had as a matter of fact produced F Form in respect of
some other transaction. But in the present case, the claim was
rejected in the absence of any F Forms. Petitioner has no
explanation as to why the F Forms could not be produced. The
authorities below in such circumstances has rightly held that the
claim for exemption from the inter state sale being a branch
transfer and the finding that it is not supported by any proper
documents are pure questions of fact with which this court cannot
interfere in the revision stage nor is there any sufficient ground to
do so.
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6. The burden of proving that the movement of the goods
from one state to another is not by way of sale but was only a
transfer otherwise than by way of sale, lies on the assessee.
Further the manner of proof to be adduced is also specified in 6A
of the C.S.T.Act as one prescribed. By fiction of law, it will be
deemed to be an interstate sale, in case he does not discharge his
burden in the manner prescribed by rules. In this case, the
assessee having failed to discharge his burden by producing ‘F’
form, there is no error in the order of the Tribunal.
The revision fails and accordingly dismissed.
P.R.RAMAN, JUDGE
K.P.BALACHANDRAN, JUDGE
Rp