TMI Blog2017 (8) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... a mere change of opinion, the findings could not be disturbed under Section 16 of the Act. The Appellate Authority applying the legal position in the case of Ashok Leyland Limited [2004 (1) TMI 365 - SUPREME COURT OF INDIA] held that re-assessments were illegal and without jurisdiction. The Appellate Authority made an observation that there is a need to re-look at the contents of Form F and the provisions of Section 6(A)(2) of the CST Act, especially in view of the interpretation placed by the Hon'ble Supreme Court in the case of Ashok Leyland Limited. This has led to the incorporation of sub-section (3) in Section 6(A) of the CST Act. However, the impugned assessments are much prior to the said amendment. The impugned re-assessment proceedings are without jurisdiction. In the light of the said conclusion, it is not necessary for any other exercise much less a fact finding exercise - petition allowed - decided in favor of petitioner. - W.P.Nos.9394 and 9395 of 2004 and W.P.M.P.Nos.10964 and 10965 of 2004 - - - Dated:- 27-7-2017 - T. S. Sivagnanam, J. For the Petitioner : Mr.R.L.Ramani, for Mr.B.Raveendran For the Respondents : Mr.K.Venkatesh ORDER This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods manufactured at Coimbatore were intended for sales to specified customers only and no manufacturing activity was done at Haryana. Further, the Haryana branch obtain purchase orders from three automobile manufacturers and based on the purchase orders, the annual production plan is tentatively programmed for production of components at the Head Office at Coimbatore to be supplied to the branch at Haryana. The petitioner did not file their objections to the pre-revision notice, but approached the Hon'ble Supreme Court by filing a writ petition in W.P(Civil).No.187 of 2001 which was tagged along with other connected matters and pending further orders, stay of collection of CST by State of Tamil Nadu was granted provided the petitioner satisfies the Tamil Nadu authorities that in respect of the same transaction, they have paid tax in another State under that State's enactment. The writ petition filed by the petitioner along with other connected matters were disposed of by the Hon'ble Supreme Court on 19.08.2003 directing the petitioner to submit their reply to the show cause notice before the concerned authority by granting six weeks time. It was held that if in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dated 09.02.1998 for the relevant assessment years and submitted that though the petitioner omitted to show brach transfers in their returns, they voluntarily disclosed the same and the claim of transfers were verified and allowed. Apart from that, the petitioner had submitted a list of goods received from its head office and also submitted a list of purchasers which were properly reckoned and assessment was completed. Learned senior counsel referred to the original assessment order passed by the respondent dated 30.09.1999 and pointed out that the Assessing Officer has recorded that on verification of records produced by the petitioner, it was revealed that the stock transfer effected by the petitioner to their factory at Haryana is found to be in order and allowed exemption. Further emphasis was made on the aspect that the goods stock transferred by the petitioner from Coimbatore are general goods and not tailor-made to suit the needs of any particular customer and the goods are physically received by their factory at Gurgaon, taken into stock and further manufacturing activity is done on the same and only thereafter, final product can be sold to the customers comes into existe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st or to make it finished goods. Therefore, it is submitted that if the petitioner has proved that manufacturing activity took place in Haryana, they should have produced the records pertaining to the assessments under the Central Excise Act and having failed to do so, the impugned assessment orders cannot be permitted to be questioned in a writ petition, more particularly, when incriminating evidence was recovered from the petitioner's premises. 8. Heard the learned counsels for the parties and carefully perused the materials placed on record. 9. This Court has elaborately set out the factual matrix in the preceding paragraphs for the purpose of showing as to what is the modus adopted by the petitioner in the transaction between their factory in Coimbatore and their establishment in Haryana. The specific case of the petitioner is that the goods which are in semi finished condition are stock transferred to their branch factory at Haryana where local purchases are made and the product is made into finished product and sold to the customers in Haryana who are three automobile giants in India. The Assessing Officer initially accepted the stand taken by the petitioner and com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are camouflaged by the assessee as stock transfer and the records recovered confirms the said concept. Further, the Haryana branch has no role of its own and the goods were moved from the head office, Coimbatore to Haryana except to watch the supply of goods so received and account for it. The objections given by the dealer were not considered and the impugned assessment orders have been passed confirming the proposal in the pre-revision notice. If this Court is called upon to decide the factual aspect, the effect of the slips recovered whether at all there is a manufacturing activity in Gurgaon, Haryana, etc., this Court will outrightly decline to do so as such exercise can be done only before the appellate authority and not in a writ petition under Article 226 of the Constitution of India. However, the contention of the petitioner is based upon the decision of the Hon'ble Supreme Court in the case of Ashok Leyland Limited (supra). 12. The Hon'ble Supreme Court pointed out that in the case before it has to be determined whether the sale in question is a interstate one. If through the means of legal fiction, it is determined that this is not an interstate sale, then it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aryana have also confirmed the receipt of the stock transfer goods from Coimbatore. The assessments have been completed under the local laws of the State of Haryana. The respondent relies on a statement given by one of the Manager of the petitioner to state that there was no manufacturing activity at Gurgaon. The petitioner's case is that the factory at Gurgaon employs 150 persons. Thus, by merely stating that the goods are not semi-finished goods but tailor-made would not be sufficient to disbelieve or remove the conclusivity attached to Form F declaration. This is precisely so in the light of the observation of the Hon'ble Supreme Court in the case of Ashok Leyland Limited (supra). Therefore, in the given facts and circumstances, the question of reopening the assessment would not arise. We have seen that for the subsequent assessment years, there is no such query raised on the petitioner and the assessments have been completed. 14. The decision in the case of the Ashok Leyland Limited (supra) was followed by the Division Bench of this Court in the case of Ashoka Sweets vs. State of Tamil Nadu reported in 2011 46 VST 275 (Mad), wherein it was held that after verifying t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court in the case of Ashok Leyland Limited (supra), it is not open to the Assessing Authority to reopen the concluded assessment and make re-assessment even if new material came to light subsequently pointing to the inference that the transactions shown as stock transfers were in fact interstate sale. 17. The Appellate Authority applying the legal position in the case of Ashok Leyland Limited (supra) held that re-assessments were illegal and without jurisdiction. The Appellate Authority made an observation that there is a need to re-look at the contents of Form F and the provisions of Section 6(A)(2) of the CST Act, especially in view of the interpretation placed by the Hon'ble Supreme Court in the case of Ashok Leyland Limited (supra). This has led to the incorporation of sub-section (3) in Section 6(A) of the CST Act. However, the impugned assessments are much prior to the said amendment. 18. Thus the legal position enunciated by the Hon'ble Supreme Court as mentioned in the preceding paragraphs is an answer to the respondents to hold that the impugned re-assessment proceedings are without jurisdiction. In the light of the said conclusion, it is not neces ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
