9911796707
TMI Blog1997 (8) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Sales Tax Act excluded by the appellate authority in the appeal filed by the assessee against the assessment order by the Assistant Commissioner. The order in appeal was passed on October 16, 1981 and the order in the suo motu revision was passed on December 27, 1985. The show cause notice had been issued by the Commissioner on June 1, 1985. 3.. The assessee, a dealer in tea, had purchased tea in the auctions held at Coonoor. It effected sales of the tea so purchased through a broker, M/s. Fobbes and Co., Coonoor, to the purchasers outside the State. The broker issued a sale note to the purchaser which contained, a term that the "sales are by ex-godown at Coonoor". The purchase note issued to the assessee provided that all the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re two sales, one by the assessee to the broker and another by the broker to the buyer outside the State and that sale was completed within the State to the broker and the despatch of the goods thereafter at the instance of the broker could not constitute inter-State sale between the assessee and the buyer outside the State. 7.. Four years after that order was passed by the Appellate Assistant Commissioner, the Joint Commissioner, revised that order after hearing the assessee. The reason given by the Joint Commissioner for holding that these sales are interState sales is that if the broker had taken delivery locally from the dealer as an agent of the outside State buyer, then the consignor should be the broker and not the dealer as the way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effected pursuant to the delivery orders issued by the broker. The only reason given by him for holding that the sales were inter-State sales is that the consignors were the assessees. 9.. Learned counsel for the assessee submitted that the Joint Commissioner as also the assessing officer have misled, themselves by holding that the movement of the goods is to be regarded as integral part of the sale transaction even though the contract of sale merely provided that the contract was on basis of delivery of goods "ex-godown, Coonoor". Any movement of the goods thereafter was at the instance of or pursuant to the direction given by the buyer and not as a direct result with the sale. The sale effected on term ex-godown, Coonoor, could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the goods to the destination indicated by the buyer-even describing itself as consignor by itself would not establish an inseverable link between the movement and the sale. It is a question of fact in each case as to whether the movement forms an integral part of the sale transaction. The fact brought on record in this case are not sufficient to reach a definite finding that the movement and sale were integral part of the same transaction. 13.. It is not necessary to discuss at length the numerous decisions relied upon by the counsel for the assessee who invited our attention to the decisions of the apex Court reported in [1975] 36 STC 389; AIR 1975 SC 1142 [State of Tamil Nadu v. Cement Distributors (P.) Ltd.], [1993] 90 STC 1 [Co-opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commercial Taxes, Bihar v. State Trading Corporation of India Limited). 15.. The question as to whether a particular sale is an inter-State sale is a question of fact to be determined in the light of the statutory provisions. That question can also be regarded as a mixed question of law and fact in so far as the correct application of the relevant principles of law to these facts are concerned. A consideration of the factual background in which the decisions were rendered in other cases is not of much assistance in determining as to whether a particular sale is an inter-State sale or not. The essential tests to be applied are well-settled. Unless the movement and the sale form an integral whole, the sale cannot be an inter-State sale. A s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods cannot by that act alone render what is otherwise a local sale into an inter-State sale.
17.. We must also observe before parting with the case, that the manner in which the Joint Commissioner dealt with the matter is far to casual. He has not adverted to all the relevant circumstances before proceeding to set aside the order made by the Appellate Assistant Commissioner, four years after that order has been made. The power of revision suo motu should be exercised with care on sufficient grounds and not in the manner it has been exercised in this case.
18.. For the reasons stated above, we set aside the order of the Joint Commissioner made on December 27, 1985 and the appeal is allowed. No costs.
Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X
|
