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2008 (10) TMI 613 - HC - VAT and Sales TaxWhether the Tribunal have not held that the transaction in question is one coming under section 5(2) of the CST Act more so in view of the judgment of the Supreme Court in State of Maharashtra v. Embee Corporation reported in [1997 (8) TMI 443 - SUPREME COURT OF INDIA]? Whether the Tribunal have not cancelled the levy of penalty imposed under section 29A(4) read with rule 35A(4)(b) of the Kerala General Sales Tax Rules, 1963 after holding that the transaction under question is one coming under section 5(2) of the CST Act and hence exempt? Held that:- The Appellate Tribunal while concurring with the findings of the first appellate authority has observed that, since ONGC has not come into the picture with the foreign supplier at any time during the course of import, it cannot be a transaction under section 5(2) of the CST Act. The Tribunal has further observed that the petitioner had attempted to manipulate the records to establish that the transactions are well within the scope of section 5(2) of the CST Act. This, in our view, is mere presumption and surmise by the Tribunal and not supported by any material. The transaction matrix shows that the transaction between the parties are inextricably linked with each other with each knowing their part of the transaction. We do not see any attempt of manipulation, since the two customs-duty-paid documents establish that the goods imported are the same goods ordered by BPL as a back-to-back order of ONGC. All the other so-called "mistakes" do not appear to affect the true nature of the transaction being one falling under section 5(2) of the CST Act. Revision petition filed by the assessee requires to be allowed and accordingly it is allowed and the impugned orders passed by the authorities under the Act and the Appellate Tribunal is set aside.
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