PARVATHI CASHEW INDUSTRIES Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) TAX Case (Revision) under Section 38 of the TNGST Act, against the order of the Sales TAX appellate Tribunal (AB), Madurai, dated 19.11.2001 passed in Madurai Tribunal State Appeal No,520 of 1999.) This tax case revision has been preferred by the assessee, which pertains to the assessment year 1990-91 under the TNGST Act. The assessee is stated to have purchased cashew nuts from one M/s.Century Cashew Products. The Assessing Authority held that the said purchase made by the petitioner was imported nuts from foreign countries by the seller viz., M/s.Century Cashew Products, which attracted levy of tax at the rate of 5% single point. The total purchase value of Rs.11,67,290/- was therefore assessed to tax in a sum of Rs.90,206/-. The Appellate Assistant Commissioner however held that the purchase of cashew nuts by the petitioner was not imported one by the seller viz., M/s.Century Cashew Products, but the same were procured by it from the local party. The Appellate Assistant Commissioner therefore set aside the order of the assessment. The Tribunal in the order impugned in this revision, by relying upon the reply made by the petitioner to the pre-assessment notice, held that the order of the Assessing Officer cannot be interfered with.

(2.) THERE are two relevant factors, which are required to be considered in this revision, viz., (i) the statements contained in the petitioner's reply to the pre-assessment notice and (ii) the various invoices covering the purchase of cashew nuts made by the petitioner from viz., M/s.Century Cashew Products. It is true that in the reply to the pre-assessment notice, the petitioner made a statement that it purchased raw cashew from viz., M/s.Century Cashew Products from out of the imports made by them. It further contains a statement that it had paid purchase tax at the rate of 5% under Section 9(a) of the TNGST Act read with Section 5(2) of the CST Act. However, in the invoices produced by the petitioner numbering 7, which covers the entire purchase of cashew made by the petitioner from M/s.Century Cashew Products, it is specifically mentioned that such cashew nuts were local raw cashew nuts of Rajamundry. In the said invoices, the TNGST at the rate of 5% along with surcharge and cess have also been specified, which is stated to have been collected from the petitioner. One other factor, which is not in dispute is that M/s.Century Cashew Products is a concern, which deals not only with the imported cashew nuts, but also the sale of cashew nuts procured from the local market. In the pre-revision notice, there is a specific reference to 7 invoices produced by the petitioner at the time of original assessment.