CARBORUNDUM UNIVERSAL LTD Vs. STATE OF KERALA

JUDGEMENT

(1.) The assessee is a company engaged in the manufacture of aluminium oxide granules at Edappally in Ernakulam District. Assessee had a branch at Visakhapatnam which was subsequently closed. The assessment year in question relates to 1999-2000 under the Central Sales Tax Act, 1956. The assessee filed its return claiming exemption on stock transfer for Rs. 77,75,219 out of which it was pointed out that, the turnover of Rs. 75,77,525 was stock transfer to the factory at Visakhapatnam. Various other reliefs were also sought for in the return. We are in this case concerned with the question whether the assessee is entitled to get claim of exemption on stock transfer for the amount of Rs. 75,77,525. The assessing authority disallowed the claim on the ground that the assessee had not produced proof for the transfer and movement of goods to the factory and evidence for crossing the check-posts.

(2.) The assessee took up the matter in appeal and the claim was also rejected by the Deputy Commissioner (Appeals) stating that the assessee had not produced F form declaration to prove that the transactions were otherwise than by way of sale. The appellate authority placed reliance on the decision in Ashok Leyland Ltd. v. State of Tamil Nadu [2004] 134 STC 473, wherein the apex court held that the initial burden of proof is on the dealer to prove that the movement of goods was occasioned by reason of transfer of such goods otherwise than by way of sale. The appellate authority also found that filing of form F declaration is mandatory and only on filing of such declaration, the assessing authority would be able to make an inquiry for the purpose of passing an order after arriving at the requisite satisfaction that the movement of goods was occasioned otherwise than as a result of sale. The assessee, aggrieved by the order of the appellate authority, filed an appeal before the Tribunal. The Tribunal also concurred with the view of the appellate authority and dismissed the appeal against which this revision has been preferred.

(3.) Sri Anil D. Nair, counsel appearing for the assessee, submitted that the Tribunal ought not to have held that form F is mandatory to prove transfer in the light of the decision of this Court in Vijayamohini Mills v. State of Kerala [1989] 75 STC 63 and also the decision of the apex court in Ashok Leyland Ltd. v. State of Tamil Nadu [2004] 134 STC 473. Counsel submitted that the Tribunal ought to have allowed the appeal on the basis of the decision of the apex court in Ashok Leyland Ltd. v. State of Tamil Nadu [2004] 134 STC 473. Counsel submitted that even in the absence of form F declaration the assessee produced other evidence to show that there was a stock transfer. Counsel referred to RG 24 register maintained under the Central Excise Rules and submitted that the register is the best evidence to prove the claim of stock transfer. Counsel also submitted that the assessee has also produced delivery notes which would support the case of the assessee that there was stock transfer. Counsel submitted, in any view of the matter as per Section 6-A of the Central Sales Tax Act, 1956 production of F form was not mandatory.