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2015 (3) TMI 785

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..... that this Court must consider the facts in totality of circumstances i.e. 20 out of 26 transactions are undisputed and that given the factual compulsion i.e. the inability to use a formal carrier the assessee should not be prejudiced. Though this submission is attracted, the Court is at the same time aware that there is no presumption either way that an inter state sale claimed by the assessee is one per se - As to whether the transaction itself was covered by an inter state sale or otherwise is a burden that the assessee has to discharge, that it did so in other 20 cases but was unable under these 6 cases precisely underscores or highlights the burden placed upon it - Decided against assessee. - ST.APPL. 72/2014, ST.APPL. 68/2014, ST.APPL .....

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..... pinion that the assessee has been unable to discharge the burden of proving that they were, in fact, inter state sales under Section 3 of the Central Sales Tax Act. The OHA too concurred with the findings of the VATO. The relevant discussion by the OHA in this regard are as follows : 2. DVAT-38 application, it has been pleaded that rejection of transactions/outward stock transfer on the ground of non production of GRs is not legally justified as the material send by Tempos. He further stated that all the transaction made through by challans and therefore the orders/notices of default assessment of tax, interest and penalty issued in this regard may be set aside. 3. An opportunity of hearing was provided to the objector and when Sh. V .....

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..... GRs were not issued due to the exporter‟s own procedure is not satisfactory. The actual movement of goods from one State to another cannot be judged by documents like bank statement, retail invoice, C‟ forms, etc. Further, no Form 38 stated to be issued to the appellant is actually placed on record. Even the stamp of the security department does not mention the Regn. Number of the vehicle by which the goods were delivered. Even the judgment of the Hon ble High court of Gujarat in the case of Commissioner of Sales Tax V. Pure Beverages Ltd. referred to by the Ld. Counsel for the appellant stipulates the condition of movement of goods which states that Even where the goods are delivered to the purchaser or his agent in the first .....

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..... x under the said provision, but the department disputed the said averment. The contention of the department that the assessee ought to have procured evidence in the form of endorsement of the authorities at the check-post or delivery memo issued by the transporter or octroi receipts showing payment of octroi by the purchaser at the destination, etc., proceeds on the presumption that there is no movement of goods and discards the version of the assessee that both the sale and the movement of goods are part of the same transaction and there is a conceivable link between the sale and the movement of goods. In other words, the Revenue would like the court to raise a presumption that the purchaser must have diverted the goods after having taken .....

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..... e was in the context of its repeated defaults in producing materials, at the stage of the special audit, assessment and later before the Objection Hearing Authority. Considering these circumstances and in the absence of any iota of evidence to show that goods were, in fact, subjected to movement across the border, as an integral part of their sale, the provisions of Section 3 were not attracted. 6. Section 3 of the Central Sales Tax Act is as follows :- 3. When is a sale or purchase of goods said to take place in the course of inter-State trade or commerce.-A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase- (a) occasions the movement of goods from one S .....

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..... the revenue s contentions were that the entire specifications of the contract governing the transaction were contained in the reverse of the invoice. That was the basis for rejection of the claim for a lower tax levy by virtue of Section 3. Significantly, the Court also noticed that in addition, other documents such as indent memo, excise gate pass and shipping memo had been placed on record. In the present case, the assessee was able to substantiate its contention that 20 of the transactions were, in fact, inter state sales. This was because each one of them had the necessary supporting document in the form of GRs. However, in the case of these 6 transactions, there is no material to show that the movement of goods was caused by and was th .....

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