1999 (4) TMI 592

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....rnment of India undertaking, engaged in manufacture and sale of fertilizer, sold to M/s. BENFED, a Government of West Bengal undertaking, in March, 1993, 8002.29 metric tons (M.Ts) of "Sufala 15:15:15"-brand of fertilizer and 4217.677 MTs of "Sufala 20:20:20"-brand of fertilizer for total price of Rs. 6,83,90,244.14. The applicant (hereinafter referred to as "the company") paid Rs. 7,11,818.87 as sales tax and Rs. 2,39,115 as turnover tax on account of that sale. The assessment for the 12 months ending on March 31, 1993 was completed on February 28, 1996. But M/s. BENFED could not resell the fertilizer to its customers and about 20 months after the aforesaid sale; it returned 2600.629 M.T.s of the said fertilizer which was received by the....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....der directing the respondents to refund Rs. 9,43,933.87 being the tax collected on 2,600.629 M.Ts. of fertilizer returned by M/s. BENFED. 2.. Be it mentioned that the company has filed the instant application before this Tribunal without exhausting remedies available before the West Bengal Commercial Taxes Appellate and Revisional Board. However, the application has been admitted by this Tribunal on the ground that a substantial question of law is involved in the dispute. 3.. The respondents in their affidavit-in-opposition have defended the impugned orders of the respondents Nos. 1 and 2. They contend that in view of the return of certain quantity of fertilizer by M/s. BENFED before paying consideration money thereof it cannot be said th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....3 and 1993-94 could not make full payment of consideration and hence returned 2600.629 M.Ts. of fertilizer. It has been argued by Mr. J.K. Goswami, learned State Representative, that the transfer of such quantity of fertilizer by the company to M/s. BENFED was thus not perfected into a valid sale by payment of consideration money and therefore, when the company made sale of 550 M.Ts. during the financial year 1994-95 out of the quantity returned by M/s. BENFED, there is no scope for considering this sale as the second sale in West Bengal, i.e., a sale succeeding an earlier sale by the company to M/s. BENFED and subsequent repurchase by the company from M/s. BENFED. According to him, there is nothing to question the correctness of the findin....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ity to be a part of turnover for the purpose of assessment for 1992-93 and assessed tax accordingly. These aspects have been disputed by Mr. Goswami ; but in the above circumstances we find no ground to hold that the sale of fertilizers by the company to M/s. BENFED was invalid. The fact remains that a part of the consideration money remained unpaid because the purchaser (M/s. BENFED) could not get customers and ultimately transferred 2600.629 M.Ts. of fertilizer in adjustment of yet unpaid part of consideration money. This transfer by M/s. BENFED, in our opinion, also constitutes a sale. In this sale M/s. BENFED transferred the property in the fertilizers (which they acquired by virtue of their purchase from the company) to the company. He....