COMMISSIONER OF SALES TAX Vs. J.P. CEMENT

JUDGEMENT

(1.) THESE are two revisions under Section 11(1) of the U.P. Sales Tax Act, 1948 (hereinafter referred as, 'the Act') directed against the order of Tribunal dated June 4,1992 relating to the assessment years 1987 -88 and 1988 -89.

(2.) THE dealer -opposite party was a registered dealer under the U.P. Sales Tax Act, 1948 and was carrying on business of cement. During the year under consideration, dealer had made the purchases of cement from M/s. Janki Prasad and Sons (Cement Division) Chowk, Lucknow, and M/s. Hindustan Automobiles, 97 Mall Road, Kanpur who were also registered firms and assessed to tax at Kanpur and Lucknow respectively. These above two firms stated to be consignment stockist of Maihar Cement, Satna, M.P. and Century Cement, Raipur, M.P. In the year 1987 -88, dealer had made the purchases of cement to the tune of Rs. 3,94,47,938.74 and sold the same for Rs. 4,03,16,126. For the assessment year 1988 -89 the total purchases from aforesaid two parties were for Rs. 3,25,18,467.70. Dealer claimed sales of cement in U.P. as non -taxable on the ground that the cement was purchased from the aforesaid two registered parties and as such was not the importer of such goods. The assessing authority had rejected the books of account and the claim of dealer that the purchases were U.P. purchase and estimated that taxable turnover of Rs. 4,35,00,000 for the assessment year 1987 -88 and Rs. 3,51,00,000 for the assessment year 1988 -89. Dealer filed appeal before the Deputy Commissioner (Appeals) Bareilly, who had allowed both the appeals and remanded back the appeal to the assessing authority. Being aggrieved by the order of first appellate authority dealer as well as the Commissioner of Sales Tax both filed appeals before Tribunal challenging the remand of the case to the assessing authority. Tribunal vide impugned order rejected both the appeals of Commissioner of Sales Tax and has allowed both the appeals for the assessment years 1986 -87 and 1988 -89 filed by dealer. Tribunal has set aside the order of assessing officer and declared the dealer non -taxable, treating the sales of cement in question purchased within U.P.

(3.) I do not find any infirmity in the order of the Tribunal. Learned Standing Counsel is not able to assail the findings recorded by Tribunal, which are findings of fact. The perusal of assessment order shows that no material has been placed on record to show that M/s. Janki Prasad and Sons, Lucknow, had ever endorsed the builties in favour of applicant in transit. There is also no material to disbelieve the case of the applicant that the aforesaid two parties M/s, Janki Prasad and Sons and M/s. Hindustan Automobile, Kanpur, having taken the delivery from the railways in the State of U.P. against their form XXXI. The delivery of the goods was taken by their authorised agent and thereafter at the railway siding the possession of the cement had been given to the dealer -opposite party. Therefore, the expenses incurred towards wharfage, etc., have been incurred by dealer. The fact that the aforesaid two parties have raised the bill in favour of the dealer and had charged the tax and deposited with their assessing officer is not in dispute. It is also not in dispute that the alleged cement have been imported by the aforesaid two parties, against their form XXXI and not by the dealer -opposite party against their form XXXI.