TMI Blog2009 (11) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... A PANDIAN K. AND SUNDRESH M.M. , JJ. ORDER:- The order of the court was made by M. M. SUNDRESH J. The Revenue who is the petitioner herein has filed the present writ petition, challenging the order passed by the Appellate Tribunal in allowing the appeal filed by the assessee who is the first respondent herein and dismissing the cross appeal filed by the Revenue by holding that the transaction involved in the relevant period is only a consignment sale and not an inter-State sale. The point in controversy is the disallowance of turnover in a sum of Rs. 12,22,374 as the consignment sale which claim was rejected by the assessing officer and treated the transaction as inter-State sale falling under section 3(a) of the Central Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... godown and reloaded and despatched to various places on various dates subsequent to the receipt of goods. In respect of the rest of the turnover in a sum of Rs. 7,90,747 the order of the assessing authority was confirmed. The entire penalty imposed by the assessing officer has been deleted on the ground that the turnover was offered but tax exemption was claimed as consignment sale. The assessee filed a further appeal before the Sales Tax Appellate Tribunal (Additional Bench), Coimbatore. The Department also filed an enhancement petition for restoration of the order of the assessing officer which has been taken on file as T.C.M.P. No. 95 of 1994. The assessing officer came to the conclusion on the basis that the entire goods sent as c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents with valid reasons. However, the Tribunal taking note of those prescribed statutory documents has granted the relief. Further, the Appellate Tribunal has also taken into consideration of the fact that the goods were consigned from Coimbatore to Palakkad which would normally take only 1 hours has allowed the appeal filed by the assessee. The Appellate Tribunal held that the mere fact that the goods have been sold on the very same day itself cannot be a ground to reject the claim for exemption more so in the absence of any incriminating document to prove the contrary coupled with the evidence produced by the assessee. The Appellate Tribunal was also pleased to hold that the assessee has produced the documents required under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the intimation given in form F by the assessee is not true, genuine and based upon false representation. Therefore, in the absence of any incriminating material contrary to the particulars provided by the assessee, the assessing officer cannot hold the declaration given under form F is not correct. The findings to the contrary by the assessing officer must be borne out by records and evidence but not on mere speculation and surmises. In the judgment in Sri Ganesan Traders v. Union of India reported in [1994] 95 STC 273 (Mad) the honourable High Court was pleased to hold that the burden of proof is on the assessee to prove to the satisfaction of the assessing officer that particulars furnished in form F are true and a genuine. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso been taken by the Division Bench of the Karnataka High Court in State of Karnataka v. Jindal Aluminium Limited reported in [2002] 126 STC 458 wherein the Division bench was pleased to hold that a mere sale transaction effected by the agents on the very same day of arrival in itself cannot be the sole basis to treat the same as an interState sale. Hence on a consideration of the abovesaid legal position, we are of the opinion that the transaction involved in the present case is merely a stock transfer from the assessee to its agents and therefore, the same is not an inter-State sale. The issue can be looked into from another angle as well. As observed above, the Appellate Assistant Commissioner as well as the Appellate Tribunal have c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent preferred a writ petition in the High Court of Judicature at Allahabad under article 226 and alternatively under article 227 of the Constitution. It was heard by a learned single judge of the High Court. The High Court has set aside the judgment of the appellate court and restored that of the trial court. A perusal of the judgment of the High Court shows that the High Court has clearly exceeded its jurisdiction in setting aside the judgment of the appellate court. Though not specifically stated, the phraseology employed by the High Court in its judgment goes to show that the High Court has exercised its certiorari jurisdiction for correcting the judgment of the appellate court. In Surya Dev Rai v. Ram Chander Rai [2003] 6 SCC 675 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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