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2019 (1) TMI 894

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..... of the Central Sales Tax Act, 1956). Varieties of goods have been mentioned in the certificate of registration. Narration of goods given to the dealer or the description of the goods given to the dealer for the purchase from rest of the States of India is not a contract of sale at all between this petitioner and the dealer nor it can be labelled as an agreement to sale between the present petitioner and the dealer. This type of narration has to be given of the goods to be purchased by the dealer so that accurately the dealer can purchase those goods from rest of the States of the country. The respondent-State authorities have treated this information given by the petitioner to the dealer as a sale itself which is an error apparent on the face of the record. For this purpose grant of Form-C has been denied - This cannot be a reason for the State for denial of Form-C to this petitioner. There is a conceptual error committed by the respondent-State which needs to be clarified. The goods which are mentioned in the certificate of registration is required to be purchased by the dealer - Nonetheless, the fact remains that petitioner is not purchasing the goods directly from the .....

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..... pre-decided contract of sale between the petitioner and the dealer of the goods and hence, Form-C is not granted. In the facts of the present case, the transaction is covered by Section 3(b) and this petitioner is entitled to avail the benefit of concessional rate of tax provided under Section 6(2) of the Central Sales Tax Act, 1956 - In the facts of the present case, as stated hereinabove, we are at the stage of grant or refusal of Form-C. Annual assessment is yet to be done and hence, the nature of transaction whether it is falling under Section 3(a) or 3(b) of the Central Sales Tax Act, 1956 or whether there is any difference in the price under Sugam-G form (road transport permit) and in the invoice issued by the dealer of the goods to the petitioner cannot be appreciated at the stage of Form-C. The respondent-State are directed that the application of the petitioner for supply of declaration in Form-C be considered and disposed of in accordance with law - petition allowed by way of remand. - W.P. (T) No. 4179 of 2018 - - - Dated:- 24-10-2018 - Mr. Justice D.N. Patel And Mr. Justice Amitav K. Gupta For the Petitioner : Mr. Kavin Gulati, Sr. Advocate, Mr. Sumeet Ga .....

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..... tates. In the facts of the present case, the goods are purchased by this petitioner from various States of the country. For purchase of the goods from various States of this country, again there are two methods. One is purchase of those goods which are mentioned in the certificate of registration of this petitioner, directly by the petitioner from the other States and another method is to purchase those goods through a dealer. It may happen that the goods which are mentioned in the certificate of registration are available either in abundance and at a cheaper price in the other States. The dealer is supposed to have more accurate knowledge about this than the petitioner and therefore sometimes it is advisable to purchase such goods through a dealer. In the facts of the present case, the goods which are mentioned in the certificate of registration of this petitioner are purchased from other States through a dealer or dealers. For the purchase of those goods, specification has to be given by this petitioner to the dealers so that dealers will find out such goods from whole of the country. Thus what is conveyed by this petitioner to the dealer is to find out the goods which a .....

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..... ment for assignment of this consignment for Mr. C (who is the petitioner in this case). This endorsement is known as sale of goods during transit , which is covered under Section 3(b) of the Central Sales Tax Act, 1956. For this sale in transit , Mr. A will issue E1 Form. This E1 Form will move from Mr. A to Mr. B and Mr. B has to issue Form-C to Mr. A . This is transaction no.1. Now, because of sale in transit, again, the property in goods are now transferred to Mr. C . This sale is covered by Section 6(2) of the Central Sales Tax Act, 1956. Exemption of tax is to be availed by this petitioner for which, looking to the scheme of the Central Sales Tax Act, 1956 to be read with Rules 1957, Mr. C has to give Form- C to Mr. B . Thus, there is movement of Form-C from Mr. C to Mr. B . Thus, Form-C is to be collected by this petitioner from the respondents which the respondents are not giving nor their e-portal is allowing to generate to this petitioner, hence, this writ petition has been preferred to get Form- C either manually or through e-portal for which programming is being done by the respondents. Unless and until, Form-C (as required .....

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..... r getting the benefit of exemption of tax under Section 8(1) to be read with Section 8(3) to be read with Section 8(4) to be read with Section 6(2) of the Central Sales Tax Act, 1956. The seller and purchaser of the goods if are in the same State, then it is always intra-State sale. This concept has also created a problem for the petitioner in getting Form-C. This concept has been mentioned in para-8 of the counter-affidavit, filed by the respondent- State. 3. Arguments canvassed by counsel for the petitioner: Counsel for the petitioner has submitted that Form-C is neither given manually nor it is being generated from e-portal of the respondent which is required under Rule 12 (1) of the Rules, 1957 for getting benefit of exemption of tax under Section 8(1) to be read with Section 8(3) to be read with Section 8(4) to be read with Section 6(2) of the Central Sales Tax Act 1956, for the financial years 2014-15, 2015-16, 2016-17 and for the current year 2017-18 also up to the first quarter. In fact, while issuing Form-C manually or through e-portal, the respondents have no power, jurisdiction and authority to verify whether the goods which are mentioned in the certificat .....

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..... ansaction because that can be done by the Assessing Officer of the manufacturer of the goods in another State. That verification can also be done by the Assessing Officer of the dealer and that fact can also be verified by the Assessing Officer of this petitioner at the time of assessing annual returns filed by them. Counsel appearing for the petitioner has placed reliance on the following decisions to substantiate the aforesaid arguments about the power, jurisdiction and authority of the respondents. (a) (1986) 61 STC 335 (Madras) (1991) 83 STC 207 (b) (1997) 7 SCC 531 (c) (1991) 83 STC 207 (d) (2009) 19 VST 178 (Orissa) (e) (1986) 61 STC 335 (Madras) (f) (2003) 131 STC 317 (Madras) (g) (2007) 3 SCC 124 (h) (1998) 109 STC 625 (Andhra Pradesh) Counsel appearing for the petitioner has further submitted that Form-C is not given by the respondent-State because there is a discrepancy in the invoice. In fact, Form-C is to be generated through eportal which is programmed by the respondent-State. No reasons are being given by the computer. Counsel appearing for the petitioner has submitted that while generating Form-C, throu .....

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..... pondent either through e-portal or manually. It is further submitted by counsel for the petitioner that unnecessarily the respondents are entering into the question whether the sale is under Section 3(a) or 3(b) of the Central Sales Tax Act, 1956. This type of verification at the stage of issuing Form-C is premature in nature. Whether the sale is under Section 3(a) or 3(b) of the Central Sales Tax Act, 1956, can be verified by the Assessing Officer of the manufacturer State or it can also be verified by the Assessing Officer of the dealer or it can be further verified by the Assessing Officer of the petitioner when they are assessing the annual returns of manufacturer or of the dealer or of this petitioner. At the time of issuance of Form-C such type of over anxiety of the respondent-State officers is uncalled for and unwarranted and under the law it is not permissible as has been held by the aforesaid decisions. Counsel for the petitioner has also submitted that there is a misconception on the part of the respondents that as the dealer of the goods and purchaser of the goods are situated in the same State, Form-C cannot be generated. It ought to be kept in mind that des .....

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..... n favour of the petitioner only after purchasing the goods by the dealer. This endorsement for sale of goods in favour of the petitioner is made by dealer only when the goods were in transit from the hands of the original manufacturer or the dealer of the goods. Thus, in no eventuality, there is a sale of goods between the petitioner and the dealer prior to sale of goods between manufacturer and dealer of the goods. It is further submitted by the counsel for the petitioner that even otherwise also, nobody can pass better title then what he is having. Unless and until, the dealer has purchased the goods, he cannot put an endorsement in favour of this petitioner. It is further submitted by the counsel for the petitioner that in all the Form-C which were demanded by the petitioner, endorsements have been made by the dealer of the goods only after the goods are being purchased by the dealer and during the movement of the goods in transit. It is further submitted by the counsel for petitioner that the specification of the goods which are to be purchased by the dealer from the rest part of the country for this petitioner, is not a predetermined sale of the goods. Such type of speci .....

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..... e counsel for the petitioner that whenever the petitioner is purchasing the goods which are mentioned in the certificate of registration through a dealer from another State, the manufacturer of the goods who is situated in another State will issue an invoice which reflects the name of the purchaser of the goods of a dealer and the name of the consignee will be of this petitioner because the petitioner has already conveyed his dealer to purchase those goods whose descriptions or specifications have been given to the dealer and therefore the consignee will be the petitioner, the purchaser will be the dealer and the consigner manufacturer-seller of the goods will be the manufacturer of the another State. Thus, it is submitted by the counsel for the petitioner that merely because the name of the petitioner is mentioned as a consignee in the invoice generated by the manufacturer in favour of the dealer that does not mean that there is a predetermined contract of sale nor it can be presumed that there is a pre-decided contract of sale in favour of this petitioner. Thus, even if, there is name of petitioner as a consignee, there can be a pre-existing agreement to sale or there can b .....

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..... 8(1) to be read with Section 8(3) to be read with Section 8(4) to be read with Section 6(2) and hence, no question whatsoever arises for grant of Form-C under Rule 12(1) of the Rules, 1957. It is further submitted by the counsel for the respondent-State that the first sale between the manufacturer and the dealer of the goods is covered by Section 3(a) of the Central Sales Tax Act, 1956 . The so called second sale of the goods between the dealer and the petitioner is not during the transit of goods and hence, Form-C cannot be given to this petitioner either through e-portal or manually. Counsel appearing for the respondent-State has relied on para-13 of the decision rendered by Hon ble the Supreme Court in the case of A G Projects Technologies Ltd. Vs. State of Karnataka reported in (2009) 2 SCC 326 . It is further submitted by the counsel for the respondent-State that the dealer of the goods who has sold the goods to the petitioner and the petitioner both are staying in the same State, i.e. the State of Jharkhand and hence, also there cannot be inter State sale between the dealer of the goods and the purchaser of the goods when they are staying or when their reg .....

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..... cified in the certificate of registration of the registered dealer purchasing the goods as being intended for re-sale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture or processing or goods for sale or [in the tele-communications net-work or] in mining or in the generation or distribution of electricity or any other form of power; (c) are containers or other materials specified in the certificate of registration of the registered dealer purchasing the goods, being containers or materials intended for being used for the packing of goods for sale; (d) are containers or other materials used for the packing of any goods or classes of goods specified in the certificate of registration referred to in clause (b) or for the packing of any containers or other materials specified in the certificate of registration referred to in clause (c). 8 (4) The provisions of sub-section (1) shall not apply to any sale in the course of inter-State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner a declaration duly filled and signed by the registere .....

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..... s have to be given by this petitioner of the goods to be purchased by the dealer from any other States of India. Narration of goods given to the dealer or the description of the goods given to the dealer for the purchase from rest of the States of India is not a contract of sale at all between this petitioner and the dealer nor it can be labelled as an agreement to sale between the present petitioner and the dealer. This type of narration has to be given of the goods to be purchased by the dealer so that accurately the dealer can purchase those goods from rest of the States of the country. The respondent-State authorities have treated this information given by the petitioner to the dealer as a sale itself which is an error apparent on the face of the record. For this purpose grant of Form-C has been denied. This cannot be a reason for the State for denial of Form-C to this petitioner. There is a conceptual error committed by the respondent-State which needs to be clarified. (v) The goods which are mentioned in the certificate of registration is required to be purchased by the dealer. Looking to the facts of the present case, this petitioner has engaged several deale .....

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..... f understanding between the petitioner and dealer as sale , it will be present sale of the future goods. It ought to be kept in mind that as per Section 6(2) of the Central Sales Tax Act, 1956 , present sale of future goods (as defined under Section 6(2) of the Central Sales Tax Act, 1956) is an agreement to sale . Thus, the narration of the goods given by this petitioner to the dealer for purchase of those goods from other States of the country is in fact not a sale at all. It is neither an agreement to sale also. Nonetheless, even if it is treated as a sale, it may be a sale of future goods which is known as per Section 6(2) of an agreement to sale . Agreement to sale is converted into sale in the facts of the present case when an endorsement is made by the dealer of the goods who has purchased those goods from the manufacturer of the other States during transit of the goods. Such type of transaction is covered under Section 3(b) of the Central Sales Tax Act, 1956 and hence, the petitioner is entitled to the benefit of exemption of tax under Section 6(1) to be read with Section 6(2) of the Act, 1956 and the procedure is to be followed by this petitioner which has been .....

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..... plicant of Form-C. The right of this petitioner to get Form-C is, hereby, violated which has a direct nexus with the Fundamental Right guaranteed by the Constitution under Article 19(1)(g) and the denial of grant of Form-C is a violation of Article 19(1)(g) to be read with Article 19(6). There are certain does and does not for the State while granting or refusing Form-C, but , at the whims and caprice of the officers of the State, Form-C cannot be denied to the registered dealer, who wants to purchase the goods which are mentioned in the certificate of registration from the other States. Sometimes, over anxious officers of the State are falling in the track of looking at the nature of the transactions or looking to the uses of Form-C by the registered dealer which is not permissible at the stage of grant of Form-C. While issuing Form-C or even other statutory forms, there is no scope for analyzing the controversial issues. Such controversial issues should be determined and adjudicated at the time of regular assessment. The Revenue authorities should not act, in any manner whatsoever, to defeat the very purpose of Section 8 of the Central Sales Tax Act. The statute provides that .....

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..... 3) [or sub-section (6)] of sectopm 8 fails, without reasonable excuse, to make use of the goods for any such purpose; (e) has in his possession any form prescribed for the purpose of sub-section (4) [or sub-section (8)] of section 8 which has not been obtained by him or by his principal or by his agent in accordance with the provisions of this Act or any rules made thereunder; (f) collects any amount by way of tax in contravention of the provisions contained in section 9-A,] he shall be punishable with simple imprisonment which may extend to six months , or with fine or with both; and when the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues. 10-A. Imposition of penalty in lieu of prosecution.- [(1)] if any person purchasing goods is guilty of an offence under clause (b) or clause (c) or clause (d) of section 10, the authority who granted to him or, as the case may be, is competent to grant to him a certificate of registration under this Act may, after giving him a reasonable opportunity of being heard, by order in writing, impose upon him by way of penalty a sum not .....

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..... Sales Tax Officer may satisfy himself that the requisition for the blank forms is genuine and reasonable does not empower him to pre-judge the issue as to whether or not the presumption under Section3-AAA can be rebutted. That is something that the assessing authority must consider only after the blank form has been issued and it has been duly filled in and submitted, along with such other proof as the dealer adduces. It is only then that the assessing authority may consider whether such proof, along with the filled in form is sufficient to rebut the presumption drawn under the provision. 6. The arrogation of the authority to reject the assessee s application for blank forms by the Sales Tax Officer on the ground that the transactions concerned entered into by the assessee were by way of export of leather was improper and must be quashed. After the blank forms are issued to the assessee and duly filled up and submitted along with such proof as the assessee may adduce, it shall, of course, be open to the assessing authority to satisfy itself as to whether or not the presumption under Section 3-AAA stands rebutted. (emphasis supplied) (xv) It has been held by th .....

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..... s case, the petitioner says, the goods are meant for resale. The certificate of registration also shows that the said goods are meant for resale. Learned counsel also points out-and rightly in our opinion-that after the Forty-sixth amendment to the Constitution, the goods used in executing work contracts are deemed to be sold and therefore there is a sale of the material used in execution of the works contracts. Be that as it may, as stated above, the question whether a particular C form has been issued rightly or wrongly is not a question which is relevant at this stage. We are concerned at this stage only with the supply of C forms to the petitioner by the commercial tax authorities. 5. Accordingly, the writ petition is allowed. The authorities shall supply the requisite number of C forms according to the Rules, as and when applied by the petitioner. No Costs. (emphasis supplied) (xvi) In view of the aforesaid decisions, grant of Form-C cannot be denied by pre-judging the issue of nature of transaction. Unnecessarily the respondent-State has entered into the question that as there was a pre-existing or pre-determined or pre-decided contract of sal .....

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..... struction of trade or business in which event it may amount to total restriction which is impermissible under the law. 13. The Madras High Court in W. P. Nos. 1379 and 1380 of 1967 and 840 of 1971 (Nambiar v. State of Madras) by order dated April 27, 1971 held that there is no provision in the Act which authorises the Commercial Tax Officer to refuse to provide the assesse with C forms. If the assesse misused the C form, that will be punishable under Section 10 of the Central Act. Beyond that, it had no effect, not even in tax. The Commercial Tax Officer was not constituted as a policeman to regulate and conduct the assesse along the virtuous path. Nambiar s case (W. P. Nos. 1379 and 1380 of 1967 and 840 of 1971, decided on April 27, 1971) has been referred in Chanda Paints (Madras) Ltd. v. Commercial Tax Officer [1986] 61 STC 335. xxx xxx xxx 18. This being the reason for enacting Section 8 of the CST Act, which in our view is in public interest, the Revenue authorities should not act in any manner so as to defeat the very purpose for which Section 8 of the CST Act was enacted. The statue provides that C form should be issued under a particular ma .....

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..... re of the transaction. (b) By pre-judging the issue regarding the probable misuse of Form-C by the applicant of Form-C. (c) For the reasons other than the reasons as stated hereinabove otherwise, it will be termed as extraneous consideration by the officers of the respondent-State, which is known as Wednesbury unreasonableness . Thus, the officers of the State cannot deny the grant of Form-C, on the ground that the nature of transaction, is not falling within Section 3(b) of the Central Sales Tax Act, 1956. This type of extraneous considerations cannot be given weightage to for denial of grant of Form-C otherwise such type of denial will be termed as Wednesbury unreasonableness . (xix) Looking to the counter affidavit filed by the respondent- State, following are the reasons mentioned for denial of Form-C: 7. That the C Forms are being generated online nowadays and there is no interference by the authorities concerned in the generation as long as a dealer checks all the columns and provides all the details on the portal. 8. That there is a requirement of providing the details of road permits in the cases of inter state sale to determine whet .....

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..... and there will be egeneration of Form-C automatically by the computer. Computer works upon the programming done by the respondent-State. If there is a wrong programming, there can be denial of grant of Form-C. Normally the computer never gives the reason. Only one or two lines are given by the computer, if the Form-C is not issued and this one or two lines as argued by the counsel for the petitioner is as under: There is a mis-match between the value as displayed in the road permit vis-a-vis the invoice value which is indicated by the seller or the petitioner. Thus, the two words are mentioned: one is a road permit and another is an invoice and the matching of the value , the computer is seeking. This search of the computer is based upon the programming by the respondent-State which is extraneous consideration, which in the eye of law is known as Wednesbury unreasonableness . This search of the matching in the value in the road permit and in the invoice is nowhere mentioned in any provision of the Central Sales Tax Act, 1956 nor under any Rule made thereunder. This wrong programming is being done by the respondents and hence, wrong reasons have been given by the com .....

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..... tioned (the name of this petitioner). Merely because name of the consignee is mentioned, which is of this petitioner it does not mean that there is a pre-existing contract of sale between this petitioner and the dealer. Merely because name of this petitioner is mentioned as a consignee in the invoice generated by manufacturer/seller of the goods from other State it does not mean that there was pre-determined or pre-decided contract of sale between the petitioner and dealer of the goods and even if the name of this petitioner is mentioned as a consignee in the invoice generated by the seller of the goods from other States, the contract of sale between petitioner and dealer will come into existence upon endorsement made by the dealer of the goods, during transit of the goods or during movement of the goods. Hence, in the facts of the present case, the transaction is covered by Section 3(b) and this petitioner is entitled to avail the benefit of concessional rate of tax provided under Section 6(2) of the Central Sales Tax Act, 1956. (xxii) Whenever the goods are to be transported by the seller of the goods from another State to this State, a road permit is required w .....

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..... be ₹ 105/- by way of an illustration. Now, when Form-C is to be generated by this petitioner, there is bound to be a difference of the value of the goods mentioned in Sugam-G-road transport permit and the value of goods at which it is purchased by the petitioner from the dealer of the goods which is a sale no.2, but , this cannot be a reason for denial of Form-C. Mechanically, the programing has been done by the officers of the respondent-State and therefore, wrong result has been generated by e-portal which is of denial of grant of Form-C which has given birth to this petition and several such type of litigations. Sale no.1 and sale no.2 , as stated hereinabove, are bound to be with difference in price, otherwise dealer will not get any profit and merely because there is a price difference in the Sugam-G form-road permit and price given by the petitioner while getting Form-C, that does not mean that Form-C can be denied to the petitioner. Thus, there is bound to be a difference in price mentioned in Sugam-G-road permit and the invoice between dealer and the petitioner and hence, this can be a ground for denial of Form-C on the plea of a difference in the price. (xxi .....

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..... ods during the movement of the goods. Such type of sale during transit of the goods is being done through endorsement. (xxv) It ought to be kept in mind by the respondent-State that the residence or the registered office of the dealer and the petitioner is not a test to be applied to judge the nature of the transaction whether it is an intra-State sale or inter-State sale. Even if the dealer of the goods is situated within the State of Jharkhand, he can purchase the goods from outside the State of Jharkhand and during the transit of those goods from another State to the State of Jharkhand, an endorsement can be made by the dealer of the goods and this endorsement is known as transfer of the property in the goods to this petitioner during transit of the goods which is known as sale of the goods during transit of the goods which is covered under Section 3(b) of the Central Sales Tax Act, 1956 and as per Section 6(2) of the Central Sales Tax Act, 1956 such type of purchaser, during transit of the goods, is also entitled to get the benefit of the purchase of the goods with exemption of tax. Thus, the reasons given in paragraph no.8 of the counter affidavit filed by the respondent- .....

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..... n be said that there was pre-determined or pre-decided contract of sale between petitioner and the dealer of the goods, prior to the purchase of the goods by the dealer from the manufacturer of the goods (from another State). Sale between petitioner and the dealer comes into existence only upon the endorsement made by this dealer of the goods, during transit of the goods. It appears that the respondent- State authorities has lost sight of the correct meaning of: (a) Agreement to sale which is in pre-existence between petitioner and the dealer of the goods. (b) Present sale of future goods is also known as agreement to sale (as per Section 6(3) of the Sale of goods Act). (c) The incidence of tax is on a sale and not an agreement to sale. Thus, the aforesaid aspect of the matter has not been properly appreciated and mechanically the reason has been given in paragraph no.11 of the counter affidavit by wrong interpretation of the aforesaid decision rendered by the Hon ble Supreme Court and hence, the reasons given in paragraph no.11 for denial of grant of Form-C is not tenable at law. (xxiii) Counsel for the respondent State has relied upon the decision rendered .....

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..... raph no.5 as under: 5. Accordingly, the writ petition is allowed. The authorities shall supply the requisite number of C forms according to the Rules, as and when applied by the petitioner. No Costs. Advocate s fee ₹ 150 . (emphasis supplied) Thus, the direction was given by Hon ble the Andhra Pradesh High Court that the respondent-authorities shall supply the requisite number of C-Forms in accordance with rules as and when applied by the petitioner. Similar direction was given in other judgments also by relegating the petitioner to the State. We, therefore, direct the respondent-State to appreciate the aforesaid observations made in this judgment in the light of several decisions cited hereinabove. As stated hereinabove, in only four eventualities Form-C can be denied to the registered dealer viz. (a) Whether the applicant of Form-C is a registered dealer or not under Section 3(a) and 3(b) of the Central Sales Tax Act, 1956? (b) Whether the goods for which Form-C is demanded is enumerated or included in the certificate of registration or not? (c) The necessary amount for getting Form-C has been paid or not? (d) Whether there is an .....

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