TMI Blog1986 (1) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... , the details of which are: Commodity Quantity Recorded purchased value 1.. Pepper 486.00.000 Qtl. 2,92,203.00 2. Areca 542.00.000 ,, 2,41,871.00 3. Dry ginger 38.10.000 ,, 18,232.00 4.. On verification, the assessing authority was satisfied that the above purchase bills were not genuine and hence he decided to disallow the claim for exemption. This resulted in the assessing officer issuing a pre-assessment notice which reads as follows: "I have examined the question of exemption: As early as January, 1972, Indian Pepper and Spice Traders Association brought it to the notice of the Government, the Board of Revenue and other departmental authorities that various dealers of Tellicherry, Calicut, etc., are carrying on clandestine business in pepper, ginger and other commodities actually brought from places within the State by transporting such goods to places outside the State under the cover of R.Cs. obtained from the Mahe sales tax authorities either in the name of fictitious persons or in the name of their stooges and thereby evading the purchase tax on these commodities. They were actually doing business from Tellicherry or Calicut but were creating records so as to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of evidence to show that the goods were passed en route Muttungal which is the only main and shortest route connecting Mahe and Calicut. There is also no other convenient highway to facilitate the transport except the one touching to Muttungal sales tax check post. In these cases the argument advanced was that the transports were made without touching the check post at Muttungal. No prudent businessman will select a route, covering so many miles through illicit roads and by-passes to reach Calicut when a shortest route is available. The motive behind the alleged selection of such a circuitous route is very clear especially when in the cases referred to above the goods were transported en route Muttungal check post. The records relating to the lorries in which the transports were effected have not been made available so as to examine whether such lorries have necessary route permits to ply through such circuitous routes. Even in cases where the bills bear the seal of the sales tax check post at Muttungal it cannot be taken for granted that the goods were actually transported from Mahe, as in the face of the above facts the probability is that such goods were brought from within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convenience of stopping the vehicle at the check posts and keeping them stationary for pretty long time according to the will and pleasure of the inspectors and allowing the goods to be inspected, sometimes by damaging the goods and paying the 'mamools' at times the drivers choose to go by alternative routes. From Mahe to Calicut there are other convenient routes which are only two or three miles long. At Muttungal check post, at that time there was no cross bar across the road and lorry drivers taking away the vehicle through the check post without stopping especially at nights when the watchman on duty in the check post would be fast asleep, was not uncommon feature. Therefore, just because in some bills there was no seal of the Muttungal check post you cannot jump into the conclusion that the bills are not genuine bills or the goods have not been transported." 6.. After considering the above explanation as also the arguments advanced on the side of the assessee-respondent, the assessing authority rejected the purchase bills and entered the finding that they are not genuine and accordingly disallowed the exemption claimed. The purchases, therefore, were treated as local purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtaining registration certificates in Mahe in the names of their stooges and thereby evading the purchase tax on these commodities. The total production of pepper in the whole of Pondicherry State is only 10 tons per year as per the Government publications of the Pondicherry Government whereas the alleged purchase of pepper from Mahe of each pepper dealer in Tellicherry is much more than that. While it is claimed that the purchases of pepper were inter-State purchases from Mahe, it is a known fact, the so-called pepper dealers of Mahe are not paying any tax to the Government of Pondicherry on the alleged sales nor are they sales tax assessees. Here the assessees have produced bills in their names of the alleged Mahe parties and accounted transport charges in the ledger for the alleged transport from Mahe. Under ordinary circumstances these would be sufficient materials to establish the purchases, but in the face of the abovesaid notorious facts, at which we cannot shut our eyes and act in blissful ignorance, as the final fact finding body we will be failing in our duty unless we insist on more reliable and clinching evidence. One important piece of evidence would be proof of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been held thus: "It cannot be disputed that when the appellants are claiming exemption, the burden of proving the same is on them. Though the assessing officer has taken the stand that apart from producing the bills and books of accounts, they have to prove that they have been paid the consideration for the purchases from Mahe, the bills and books of accounts produced by the appellants show that price has actually been paid to the Mahe dealer and consequently as we have already stated in paragraph 9 of our earlier order dated 31st October, 1977, we are of the view that no other evidence is necessary to prove that price has been paid. In these circumstances, we are of opinion that the appellants have already proved their case producing proper evidence and we do not find any reason to disbelieve their version." 10.. On going through the rather longish order of the Tribunal, we are convinced that the Tribunal has not considered any of the aspects, this Court in the judgment in T.R.C. No. 26 of 1978 (Deputy Commissioner of Sales Tax v. M.K. Cheriya Mammoo Brothers [1980] 45 STC 108) had highlighted. This Court has categorically stated in the judgment that the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only by crossed cheque drawn on a bank or by a crossed bank draft. These documents would positively prove that the transactions are genuine. The assessee, in these circumstances, must be held to have failed to discharge the burden of proving that the exemption claimed is allowable under law. 11.. The assessing authority, therefore, has rightly included the turnover relating to the transactions, called "the Mahe purchases" in the taxable turnover of the assessee. 12.. The Appellate Tribunal in not considering the scope of the decision of a Full Tribunal which, according to us, is binding on the Tribunal, has failed to comply with the directions contained in the judgment of this Court in disposing of T.R.C. No. 26 of 1978 (Deputy Commissioner of Sales Tax v. M.K. Cheriya Mammoo Brothers [1980] 45 STC 108). 13.. On going through the entire files, we are satisfied that the assesseerespondent has effectively evaded payment of tax by accounting its local purchases as purchases effected in Mahe. In this context, it is worth recalling the finding of the Full Appellate Tribunal in T.A. No. 205 of 1970 dated 11th October, 1973, that "it is a known fact, the so-called pepper dealers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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