TMI Blog2002 (7) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... orders, the Joint Commissioner had set aside the orders passed by the Appellate Assistant Commissioner and restored the orders passed by the assessing authority. The Joint Commissioner also inflicted penalty under section 9(2) of the Central Sales Tax Act (in short, "the CST Act") read with section 12(2) of the TNGST Act. Some facts, which are common to both the appeals, would be necessary to understand the controversy. 3.. The assessee is a partnership firm, carrying on the business under the name and style of Tvl. Govindan Engineering Foundry, Trichy, Tamil Nadu. The assessee has a branch, operating under the same name and style at Chittoor in Andhra Pradesh. There is one other partnership concern, carrying on business in the name of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh General Sales Tax Act. This claim was disallowed by the assessing authority and he assessed the turnover of Rs. 2,41,010 (in T.C. No. 19 of 1995) and Rs. 2,38,066 (in T.C. No. 20 of 1995) as inter-State sales. 3.3. The assessee preferred appeals before the Appellate Assistant Commissioner, who allowed the appeals relying on the decision of this Court in State of Tamil Nadu v. Hercules Rubber Co. [1983] 54 STC 85. The appellate authority accepted the case that the goods were transferred by way of "branch transfer" from Trichy to Chittoor, which was supported by form Fs. 3.4. The order of the Appellate Assistant Commissioner, however, did not find favour with the Joint Commissioner, who, in exercise of his suo motu revisional pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transaction between the Trichy branch and Chittoor branch was between two different legal entities is absolutely incorrect and thereby the order of the revisional authority has immensely suffered. 5.. We must say that the learned counsel is correct in his contention that this transaction was in between the assessee and its branch office at Chittoor. Learned counsel for the department could not take any exception to any voluminous documentary evidence produced. We have tried to see the record which was produced before us and that also does not suggest that the transaction of sale between the Trichy branch and Chittoor branch was between two different entities. We were also taken through the finding in the revisional order where the Joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of the finding that the partners in Chittoor were different from the partners in Trichy branch and, therefore, that was a transaction between two different entities. We do not think that the argument is sound because we find these facts even before the earlier referred finding is concluded by the revisional authority. The revisional authority has taken note of the fact that there was a link between the assessee in Tamil Nadu and the ultimate buyer in Andhra Pradesh; that it is only to Balaji Mill Stores, Chittoor that all the goods in the same and for the very same price were sold. The revisional authority, therefore, proceeded to imply a contract between the Balaji Mill Stores and the assessee at Trichy. Therefore, it is obvious th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust have moved in pursuance of the orders placed by Balaji Mill Stores. It is again to be noted that this finding is a pure "finding of fact" and, therefore, we would desist from interfering with it in our writ jurisdiction. 7.. It is no doubt true that the goods firstly moved from Trichy to Chittoor branch. However, it has come by way of clinching evidence and also by way of a finding of fact that all the goods which came to Chittoor within two or three days of their arrival were further sold to Balaji Mill Stores. Now the most important fact which comes in mind is that Balaji Mill Stores has the same two partners, viz., M/s. T. Govindan and G. Purushothaman besides three other partners. As regards the transactions in between Chittoor br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central sales tax would have to be paid at the higher rate if the goods were directly despatched from the assessee to Balaji Mill Stores and then Balaji Mill Stores would also have to pay the tax if the goods were to be sold by them in Andhra Pradesh. By using the Chittoor branch as a conduit, the assessee has avoided at least one payment of the tax under the CST Act. 8.. Learned counsel again invited our attention to the decision on which the appellate authority had relied upon. That decision being Hercules Rubber Co. case [1983] 54 STC 85 (Mad.). However, the major factual difference is that in the reported decision there was no link found between the assessee in Madras and the buyers in Andhra Pradesh whereas, in our case, there i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
