TMI Blog1990 (3) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturing unit at Patancheru. Its registered head office is at Calcutta with the same name. The Patancheru factory manufactures basic drugs, i.e., chlorophenical I.P., paracitimal, etc. It is not in dispute that M/s. Dey's Medical Stores (Mfg.), Calcutta, is one of its main customers. The drugs manufactured by the assessee in its factory at Patancheru in Andhra Pradesh are sent to the head office at Calcutta and M/s. Sri Enterprises at Bombay by raising stock transfer invoices accompanied by delivery challans. The dispute concerns the stock transfers mainly made to Calcutta to the head office which stocks were later sold to Dey's Medical Stores, Calcutta. The assessing authority and the first appellate authority construed the correspondence between Dey's Medical Stores, Calcutta, and the assessee as amounting to a contract pursuant to which the goods must be deemed to have been moved from Andhra Pradesh and also relied upon certain applications for licences made to the Director, Drug Control Administration, for import of raw material, as corroborative evidence of the contract and held that the disputed turnover was exigible to tax. The assessee appealed to the Tribunal. The Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drugs imported into West Bengal. The assessee applied to the sales tax authorities at Calcutta under rule 15 of West Bengal Sales Tax Rules and obtained necessary permits for importing the basic drugs manufactured by it at Patancheru. With the aid of these permits, the employees of the assessee take delivery of the parcels and transfer the same to the sales office. The goods are entered in the stock register maintained at the Calcutta office. The assessee's office at Calcutta issues F forms as required under rule 12(5) of the Central Sales Tax (Registration and Turnover) Rules, 1957, read with section 6-A of the Central Sales Tax Act. These forms are being regularly filed with the Commercial Taxes Department. M/s. Dey's Co., Calcutta is a large concern which has its factories in Calcutta and U.P. and it purchases a small portion of its requirements from the assessee's depot at Calcutta. During the assessment year there were negotiations between the assessee and M/s. Dey's Co. This correspondence has a very important bearing on the case. Now the correspondence relates to the probable quantities which could be purchased by M/s. Dey's Co. from the assessee and the terms and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. The Tribunal referred to the contents of the annexure to the assessee's application, which read as follows: "M/s. Dey's Medical Stores (Manufacturing) Ltd., Calcutta and Naini, are prepared to buy from us monthly 2,00,000 kgs. of chlorophenical I.P. and 25,000 kgs. of chlorophenical palmitate I.P. per month. Because of inadequate import licence and corresponding lack of materials (imported materials), we are unable to book orders for more than 3 months at a time as bigger formulations are in the habit of making risk purchases on account of mere fulfilment of contract/orders." Regarding this material, the Tribunal observed: "While the fact that M/s. Dey's Co., are interested in purchasing large quantities of assessee's products is not relevant, the programme for import is not dependent on this factor. The import of goods would have necessarily to be done within the period of validity of licence and this is the prime factor. The endeavour of the assessing authority to link up the imports to orders of Dey's Medical Stores is factually and legally untenable." After thus scrutinising the evidence on materials (1) and (2) as categorised above, the Tribunal summarised as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the appellant clearly shows that these so called purchase orders are only efforts to purchase and not contracts of sale. The assessee's replies clearly specify that it is not committing itself to supply goods. There is no acceptance and hence there is no concluded contract. The Hyderabad office or factory, has no connection with its sales have now been taxed." We are of the view that on the facts found by the Tribunal, the findings are clearly justified and there is no error of law whatsoever warranting interference. We may add that the basic findings of fact have not been impugned by the counsel for the State before us-obviously because they are based on unimpeachable documentary evidence-and on those facts, we are unable to see any error of law. Further in our view, the Tribunal had rightly distinguished English Electric Company of India Ltd. v. Deputy Commercial Tax Officer [1976] 38 STC 475 (SC), as a case where there was, in fact, an agreement to sell and there was a stipulation, express or implied, regarding the movement of goods from one State to another in pursuance of such an agreement. Again, the Tribunal rightly distinguished Union of India v. Khosla and Co. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of Rs. 2,00,764.92 with interest after setting off the balance amount towards admitted tax payable for 1982-83 up to November, 1989, as set out in para 4 of the affidavit filed in support of the writ petition. It is, no doubt, contended by the learned Government Pleader that some more amounts beyond November, 1989, might have fallen due but it must be noted that, these are likely to be small amounts and according to the petitioner's counsel, the State is holding other refundable sums with it for the subsequent years. In that view of the matter, we are inclined to allow the writ petition as a consequence of our decision in the T.R.C. Under section 33-C of the Andhra Pradesh General Sales Tax Act, the amount refundable to an assessee could be withheld if the matter is under an appeal or further proceeding or where any other proceeding is pending. The cases of refund in such cases are finally governed by section 33-F. Sub-section (2) of section 33-F states that "where the refund is withheld under the provisions of section 33-C, the State Government shall pay interest at the aforesaid rate (i.e., 12 per cent simple per annum) on the amount of refund ultimately determined to b ..... 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