TMI Blog2004 (5) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... rised to purchase tissue paper, craft paper, printing ink for use in production or manufacturing process. 3.. The assessing authority for all these assessment years issued show cause notices under section 10-A of the Central Sales Tax Act, 1956 (hereinafter referred to as "the Act") as to why penalty be not imposed for purchase of printing ink worth Rs. 2,29,179, chemicals, machinery parts and rubber roller, etc., worth Rs. 29,332.62 from outside State of U.P. against the form C at concessional rate of tax. According to the department the dealer has made total purchase of Rs. 2,58,501.60 from outside the State of U.P. by unauthorisedly using form C, at concessional rate of tax. The case of the department was that the dealer was entitled to purchase from outside the State of U.P. tissue paper, craft paper and printing ink for resale or for use in the manufacture or processing of goods for sale, against form C. In reply to the show cause notice the dealer came out with the case that he has been purchasing these goods against form C since long time. The assessing authority took the view that the dealer has not sold the goods, thus, purchased against form C. Reliance was placed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the same was used in job-work for printing paper for others will entail penalty in view of section 8(3)(b) of the Act read with section 10-A of the Act in absence of any specific finding that the printed material was 'for sale'? " Question No. 1 5.. There is no dispute that the authority who granted the certificate of the registration was the Sales Tax Officer, Sector 3, Moradabad. There is also no dispute that the assessment file of the dealer-opposite party was presently transferred by the Commissioner of Sales Tax for assessment to the Assistant Commissioner (A), Sales Tax. There is also no dispute that the point of jurisdiction was not raised by the dealer-opposite party either before the assessing authority or before the appellate authority. It was raised for the first time before the Tribunal. The Tribunal has decided this controversy in a very summary manner without entering into much discussion. It opined that the Assistant Commissioner (A) was "to perform the assessment only and not to perform all the functions of the assessing authority as Assistant Commissioner (A), Sales Tax, it neither granted certificate of registration nor is the competent authority to grant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates shall, on behalf of Government of India, assess, reassess, collect and enforce payment of any tax including any penalty, payable by the dealer under this Act ............... Section 2(a) of the U.P. Sales Tax Act defines "assessing authority" under the U.P. Sales Tax Act means any person appointed by the State Government or the Commissioner of Sales Tax to perform all or any of the functions of the assessing authority under the U.P. Sales Tax Act. Section 10-A of the Act uses the words "who granted to him", or as the case may be, is competent to grant to him a certificate of registration. The assessing authority is the competent authority to grant registration certificate to any person under the Sales Tax Act. Apart from the authority who granted the registration, the authority who would be competent to grant registration is also mentioned under section 10-A of the Act. The Tribunal overlooked that the authority who is competent to grant the registration is also mentioned in section 10-A of the Act and it is assessing authority namely, Assistant Commissioner (A), in the present case. 8.. Apart from the above, the Tribunal has failed to take into consideration section 6 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the dealer that these goods by any stretch of imagination could have been covered by the items shown in the registration certificate. It cannot be said under such circumstances that there was no mens rea or false representation on behalf of dealer to the selling dealer. Form C is a prescribed form under the Central Sales Tax Rules. The proforma of form C as has been provided clearly stipulates a certificate to be signed by the purchasing dealer that the goods which he is purchasing "are covered by my/our registration certificate No ............. dated...........issued under the Central Sales Tax Act, 1956". He has to give a declaration that the above statement is true to the best of my knowledge and belief by signing form C. The Tribunal has recorded a finding of no mens rea only on the ground that the dealer by practice has been issuing form C in respect of all items other than those specified in the registration certificate in the past but the department never objected to it. This observation of the Tribunal is of general nature. It has not given any specific instance of past transactions. The gist of the offence under section 10(b) is false representation made to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured, should be sold by the person who got the goods manufactured on job-work. The dealer has failed to produce any such person who got the job-work done by the dealer and had sold the goods. The appellate authority without considering the matter in detail has disposed of this issue on making reference to various judgments. On the basis of a certificate issued by M/s. Nayab Biri Factory certifying that it got the printing work-done on job-work done by the dealer on the jhilli of biri. In that jhilli the bundle of biri was wrapped and was ultimately sold. He was of the opinion that the price of biri was fixed by such person taking into account the price of jhilli also and as such there is a sale. This finding of the first appellate authority was not accepted by the department in the memo of second appeal filed before the Tribunal. Through the grounds Nos. 5 and 6 the observation of the appellate authority was objected to on the plea that the said observations were made by the appellate authority without making any enquiry. The jhilli as a matter of fact has no value with reference to the sale of biri. Nor any such evidence was given by the dealer that the value of the jhill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d arise whether the goods manufactured or processed by the registered dealer for a third party were intended for sale by such third party and that would have to be decided by the court or the competent authority according to the appropriate and relevant rules of evidence, but merely because some difficulty may arise in the determination of this question by reason of the third party coming into the picture that would be no ground for refusing to place reliance on the provisions of section 8(3)(b) the only consideration which it can reasonably bear. " 12.. The aforesaid authority of the Supreme Court was also relied upon by the counsel for both the parties before me as well as by the assessing authority and the appellate authority. A clear-cut finding has been recorded by the assessing authority that the dealer has failed to produce any material on record to show that such goods, thus, manufactured by the dealer for a third party were intended for sale by such third party. In absence of any material no fault can be found in the conclusion of the assessing authority on this issue. The appellate authority without adverting to this issue in detail has disposed of the matter on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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