TMI Blog1993 (9) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... , for short) read with rule 3(66a) of the Bengal Sales Tax Rules, 1941 ("the 1941 Rules" for short), framed under the Bengal Finance (Sales Tax) Act, 1941 ("the 1941 Act" for short). 2.. Messrs. Snow Frost Industries Private Limited, the applicant No. 1, is a registered dealer under the 1954 Act of which the applicant No. 2 is a directorshareholder. Their case is that with the sanction of a term loan on or about May 20, 1983, from the State Bank of India (hereinafter referred to as "the bank"), SIB Division, Bhowanipur Branch, for a sum of Rs. 4.89 lakhs, the applicants started work on their factory at 29, Italgacha Road, Calcutta-700 079 for manufacture of ice blocks. For setting up the factory, they had engaged the services of Messrs. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Commissioner held that under rule 3(66a) of the 1941 Rules the onus of keeping vouchers and other documents to establish purchase of plant and machinery and also to prove that the industry was established with such plant and machinery was on the applicants which they failed to discharge since the genuineness of the purchase of plant and machinery from the corporation was in doubt owing to the fact that the vouchers in support of the purchase of plant and machinery could not be verified. Hence the present application for setting aside the two orders and grant of E.C. for a period of 3 years from October 8, 1985 to October 7, 1988, the date of first sale of goods manufactured in the unit being October 8, 1985. 3.. It is the case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by New India Refrigeration Stores (Registered), New Delhi, in respect of which they had been allowed concessional rate of duty by the Central excise authorities. The applicants had, in fact, installed the plant and machinery at the site through purchases made from the corporation for which the payments had been made through the bank. The respondents were, therefore, in error in holding that the purchases were suspect merely on surmise after an enquiry held at a wrong address after a considerable lapse of time. The applicantcompany had also not collected any sales tax from its customers during the period and was now being penalised by denial of E.C. though all the relevant conditions in terms of rule 3(66a) of the 1941 Rules had been duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use payment was made directly by the bank through an account payee instrument to the selling dealer, it cannot per se be treated as conclusive evidence of the existence and identity of such dealer. This, even if true, may at best raise an inference regarding the identity and existence of the dealer which may be rebutted on the basis of evidence regarding the non-existence of the said dealer. Such is the position in the instant case where the enquiry report revealed non-existence of any such dealer not only at the local address where the enquiry was held but also in the registers of the CTO's office in whose jurisdiction the said corporation's office was supposed to be located. Since the Assistant Commissioner and the Additional Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the respondents had come to the conclusion that the corporation from whom the purchases were alleged to have been made was found to be non-existent, was not brought on record. Though it appears from the order of the Additional Commissioner that at the time of hearing of the revision petition, a copy of the report was shown to the advocate of the applicants, sufficient opportunity was not afforded to the applicants to repel the findings of the enquiry report and we are, therefore, inclined to hold that there has been a denial of natural justice. 7.. It is also necessary that the facts relating to payment by the bank are duly verified and considered by the Assistant Commissioner on merits after necessary investigations at the bank level ..... X X X X Extracts X X X X X X X X Extracts X X X X
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