JAYPEE CEMENT LIMITED THROUGH ITS SENIOR GENERAL MANAGER (FINANCE), SHRI RAJIV CHAUDHARY SON OF LATE SHRI VIRENDRA SINGH Vs. THE COMMISSIONER OF TRADE TAX

JUDGEMENT

(1.) PRESENT revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as Act) is directed against the order of Tribunal dated 18.08.2006 relating to the assessment year 2002 -03 under Central Sales Tax Act (hereinafter referred to as Central Act).

(2.) APPLICANT is engaged in the business of manufacture and sales of cement. The factory is situated at Rewa (Madhya Pradesh) and one of the sales depot is situated at Bareilly in U.P. and in the State of Uttaranchal, applicant has depot at Kichcha. There was one sale promoter of the applicant company at Kichcha namely, M/s Shyamji Cement Distributor, Kichcha having its Head Officer at Bareilly. Applicant used to send the cement by way of stock transfer from its Rewa factory to Bareilly depot and also directly to Kichcha depot. It was claimed that the goods were also dispatched from Bareilly depot to Kichcha by way of stock transfer and, thereafter, same were sold to the various parties of Uttaranchal. On 03.01,2004 survey was made at the premises of M/s Shyamji Cement Distributor, Bareilly in which certain documents were seized, which were mainly related to the assessment year 2003 -04. However, ex. No. 2 and 3 and loading advice No. 315 and 317 dated 23.03.2003 related to the assessment year 2002 -03. Number of builties were also found relating to the assessment year 2003 -04. From these builties it was detected that for same goods one builty was prepared from Bareilly to Kichcha and another from Kichcha to the destination of parties. Both the builties were prepared at Bareilly. In this view of the matter, it was inferred that there were pre -existing orders of the parties and the goods were directly dispatched from Bareilly to the customers in the course of inter -State sales and just to show the dispatches, as stock transfer two builties were prepared, one for Bareilly to Kichcha and another for Kichcha to the destination of the parties. While making the assessment for the assessment year 2002 -03 under Central Sales Tax Act, assessing authority asked the applicant to produce the loading invoices, which were not produced before the S.T.O. (S.I.B.) for the verification but the same were not produced before the assessing authority It was found that during the year under consideration, 5497.80 MT cement were shown to have been dispatched to Kichcha depot by way of stock transfers. In the absence of proper verification of the stock transfers due to non -production of the loading invoices, assessing authority rejected the claim of stock transfers and treated as inter -State sales. Assessing authority in its order had also mentioned that before S.T.O. (S.I.B.), Bareilly, applicant had not produced the dispatch advices, challans, builties and loading invoices and the stock register of Bareilly godown for the assessment year 2002 -03 for verification. The report of buffer stock was also demanded but the same was also not produced. Loading invoices prior to loading invoice No. 315 were also demanded but the same were not produced: Applicant being aggrieved by the order of the assessing authority, filed appeal before Joint Commissioner (Appeals), Trade Tax, Allahabad. Joint Commissioner (Appeals) vide order dated 13.05.2006 allowed the appeal and accepted the impugned dispatches as stock transfers and deleted the tax on the amount of Rs. 23,97,974/ -. Being aggrieved by the order of Joint Commissioner (Appeals), Commissioner of Trade Tax filed appeal before the Tribunal. Tribunal by the impugned order allowed the appeal and set aside the order of the first appellate authority and remanded back the matter to the assessing authority for passing assessment order afresh. Tribunal held that perusal of the documents seized at the time of survey dated 03.01.2004 which mainly related to the assessment year 2003 -04 reveals that cement were supplied directly to the parties from Bareilly depot instead to the Kichcha depot. Therefore, assessing authority had every reason to doubt the claimed stock transfers from Bareilly depot to Kichcha depot for the assessment year 2002 -03. Tribunal held that under Section 6A of Central Act burden lies upon the assessee to prove the claim of stock transfers and for which Form -F and builties were produced. But on the basis of the documents which were found at the time of survey dated 03.01.2004 stock transfers had been doubted and the assessing authority had a right to verify the correctness of the stock transfers and merely on the basis of the Form -F and builties the claim of stock transfers can not be accepted. Tribunal held that the stock register of Kichcha depot was produced but the loading advices and their details from Kichcha depot have not been produced. While the loading invoice Nos. 315 and 317 were found at the time of survey -dated 03.01.2004. Tribunal held that in order to prove the stock transfers and the receipt of the cement at Kichcha depot it was necessary for the applicant to produce the loading invoices and the stock register and the further dispatches of the goods from Kichcha depot but the record shows that stock register and loading invoices of Kichcha depot have not been produced. Tribunal further held that the assessing authority had also failed to summon the stock register of Kichcha depot and all loading invoices, which are necessary to judge the correctness of the stock transfers under Rule 75 of U.P. Trade Tax Rules, 1948 (hereinafter referred to as Rules). In this view of the -matter to provide the opportunity to the applicant to produce stock register, dispatch advices and for fresh examination of matter case has been remanded back to the assessing authority.

(3.) LEARNED Counsel for the applicant submitted that in support of the claim of stock transfer from Bareilly depot to Kichcha, applicant had furnished Fonn -F as required under Section 6A of Central Act and Rules framed thereunder. He submitted that there is no evidence on record to show that the goods had moved from Bareilly to Uttaranchal in pursuance of any contract of sale and thus, the rejection of claim of stock transfer was not justified. He submitted that there is no justification for remanding back the matter to the assessing authority. He submitted that the applicant is ready to produce the loading invoices and the stock register of the Kichcha depot for verification even before the Tribunal. Tribunal being the last Court of fact can also examine these documents at its own stage. In support of his contention he relied upon the decision in the case of Kamal Corporation, Bindki, district Fatehpur v. Commissioner of Trade Tax, U.P., Lucknow reported in, 2006 NTN (31) 226, Nehru Steel Rolling Mills, Muzaffarnagar v. Commissioner of Sales Tax, reported in, 1993 NTN (2) 31.