SMITA CONDUCTORS LTD. Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this Writ Petition under Article 226 of the Constitution of India and moved urgently, the Petitioner is seeking to quash and set aside an order dated 14th July, 2014 passed in Appeal No. 355 of 2014 and another order passed in Rectification Application No. 63 of 2014 in the same Appeal. That order on the Rectification Application is dated 30th October, 2014. The orders, which are annexed as Exhibits 'D' and 'G', are thus challenged on several grounds.

(2.) It is urged that firstly the Appellate Authority had before it not only an application for stay filed by the Petitioner, but the substantive Appeal itself. The same set of arguments were being canvassed by both sides on the stay application as well as the Appeal. The Appellate Authority would have been well advised in taking up the Appeal and not the stay application. Assuming that course was permissible in law and it was permissible to decide the stay application, the Appellate Authority lost sight of the fact that the Petitioner is a manufacture of compact conductors, gap conductors, aluminium conductors etc. and a factory of the Petitioner is located at Silvasa, Dadra & Nagar Haveli, which is a Union Territory. The Nariman Point office is nothing but a registered office of a limited company. In the financial year 2008-09, the Petitioner imported goods at Nhava Sheva port and they were raw materials for the Silvasa factory. After clearance, they were dispatched directly to M/s. Associated Aluminium Ltd. of Silvasa for carrying out some process and as per the instructions given by the Petitioner's Silvasa factory. As the address on the documents pertaining to the import was of the Mumbai office of the Petitioner, the Assistant Commissioner of Sales Tax (Assessing Officer) formed an opinion that the import has been made by the Mumbai office. He passed an order of assessment on 28th June, 2013 i.e. under the Central Sales Tax Act, 1956 (CST) by holding that the direct dispatch of the goods from Nhava Sheva port to Silvasa was a stock transfer, within the meaning of section 6A of the CST and made by the Petitioner's Mumbai office. In the absence of declaration in Form 'F' being produced, he treated the said transaction as deemed sale and levied taxes thereon at Rs. 50,96,660/-. In addition, interest and penalty was levied making the total sum of Rs. 1,34,42,440/-.

(3.) This order was impugned by the Petitioner by filing a First Appeal and before the Deputy Commissioner of Sales Tax, Appeals-VI, Mumbai on 9th October, 2013. Admittedly, this Appeal is pending. The Petitioner's Counsel, therefore, submits that, apprehending coercive measures, an application for stay was made, on which, an order was passed on 5th April, 2014, thereby directing deposit of the entire sum demanded in terms of the assessment order.