TMI Blog2007 (8) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the transaction in question and we have come to the conclusion that they are, in fact, liable. We direct the respective assessing authorities to accept the declaration form F of each of the petitioners if they file it within a period of three months from today and to grant exemption in accordance with law. Appeal dismissed. - - - - - Dated:- 17-8-2007 - AGRAWAL R.K. AND VIKRAM NATH , JJ. The judgment of the court was delivered by R.K. AGRAWAL J. In all these writ petitions, the petitioners have challenged the circular letter dated November 28, 2005 issued by the Commissioner of Trade tax, U.P., Lucknow, wherein it has been mentioned that, under section 6A of the Central Sales Tax Act, 1956 (hereinafter referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002, the cenvat credit is admissible on fulfilment of certain requirements. Central excise duty is also leviable. It had received and made payment in respect of job work done and got done by it, respectively, and the claim is that no part of the payment made or received by it was on account of any action on the part of the petitioner or its job workers as agents or principal of the petitioner and vice versa. It had not effected any sale while sending goods for job work or while receiving goods for doing job work. It had filed its monthly return, both under the Act and the Central Act. However, the petitioner did not submit or obtain any form F in respect of the transaction of job work as it did not involve any sale. Vide notice dated June ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndertaken by the petitioner or getting the goods converted on job work from others, do not amount to sale. Likewise the goods returned also do not amount to sale. Referring to sections 148, 151 and 152 of the Indian Contract Act, 1872 which deal with bailment, bailor and bailee as also the obligation of the bailee, he submitted that when the petitioner had undertaken job work on behalf of the ex-U. P. firms, its possession was that of a bailee. Similarly, when the petitioner had sent goods for job work to others, i.e., ex-U.P. firms, they would be bailee and not an agent. He relied upon a decision of the apex court in the case of UCO Bank v. Hem Chandra Sarkar [1990] 3 SCC 389, wherein the apex court has pointed out the distinguishing fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to him, form F cannot be issued by a person who is not transferring the goods from one State to another or any other place of his business or to his agent or principal. In this connection, he also referred to the Statement of Objects and Reasons for inserting section 6A in the Central Act. The other learned counsel adopted the arguments advanced by Sri S.D. Singh. Sri A.C. Tripathi, learned Standing Counsel, on the other hand, submitted that, from a plain reading of the provision of section 6A of the Central Act, form F is required to be filed by every person who claims that he is not liable to pay any tax in respect of the goods transferred by him from one State to another and, therefore, the petitioners are under an obligation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchaser under the State tax laws of the appropriate State if that sale had taken place inside the State. In paragraph 34 of the Report, the apex court has further held as under: 34. The liability to tax on inter-State sale as contained in section 6 is expressly made subject to the other provisions contained in the Act. Sub-section (2) of section 9, on the other hand, which is a procedural provision starts with the words 'subject to the other provisions of this Act and the Rules made thereunder'. Section 6-A provides for exception as regard the burden of proof in the event a claim is made that transfer of goods had taken place otherwise than by way of sale. Indisputably, the burden would be on the dealer to show that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (2) of section 6A, a legal fiction has been created for the purpose of the said Act to the effect that transaction was occasioned otherwise than as a result of sale. The apex court has, therefore, clearly laid down that, under section 6A of the Central Act, the burden would be on the dealer to show that movement of the goods had been occasioned not by reason of any transaction involving sale of goods but by reason of transfer of such goods to any other place of business or to the agent or principal, as the case may be, for which the dealer is required to furnish prescribed declaration form in the absence of which the transfer would be treated as sale. Admittedly, what the petitioners send or receive either for job work or as a re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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