AI Drafter 
TaxTMI 
TaxTMI 
2009 (2) TMI 750
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....i, Kollam and claimed those sales as inter-State sales. But the assessing officer rejected their claim on the ground that the newsprints sold to them were not moved to another State. They were moved only to Sivakasi and later the said newsprints were converted into news magazine in Pioneer Press (P) Limited, Sivakasi and then the same were moved to Kerala. Therefore, the assessing officer assessed the said turnover under the Tamil Nadu General Sales Tax Act, 1959. Aggrieved by that order, the assessee has filed an appeal before the Appellate Assistant Commissioner (CT), Tirunelveli in CST AP No. 345 of 1995. The Commissioner allowed the appeal on the ground that the movement of goods from the State of Tamil Nadu to Kerala would certainly form an inter-State transaction. Later, the Joint Commissioner (CT)(SMR) suo motu revised the order of the Appellate Assistant Commissioner and treated the transaction as local sales and held as follows: "Looking at the above circumstances, it is found that the goods moved from the assessee to Sivakasi as a result of the sale. What happened later is that the concern of the assessee had no connection whatsoever after the dispatch of paper to give....
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....in [1981] 48 STC 232, Union of India v. K.G. Khosla and Co. Ltd. [1979] 43 STC 457, Commissioner of Sales Tax, U.P., Lucknow v. Suresh Chand Jain [1988] 70 STC 45, State of Orissa v. K.B. Saha and Sons Industries Pvt. Ltd. [2007] 7 VST 214 and A & G Projects and Technologies Ltd. v. State of Karnataka [2009] 19 VST 239. He also submitted that the order passed by the Tribunal is not in accordance with law and the same has to be set aside. The learned counsel appearing for the assessee submitted that the present writ petition is filed belatedly and the same has to be dismissed on the ground of laches and delay. The second respondent-Tamil Nadu Taxation Special Tribunal has passed an order on March 28, 2003 in T.C.A. No. 141 of 1999 (Sun Paper Mill Ltd. v. State of Tamil Nadu [2004] 136 STC 382) and the same was served on the petitioner on April 7, 2003. But the writ petition was filed only on January 4, 2005, i.e., after a period of 20 months and hence, the writ petition was filed belatedly without any reasonable cause and the assessing officer also passed consequential order giving effect to the Tamil Nadu Taxation Special Tribunal's order on June 25, 2003. Further, the learn....
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....ered for the delay of 20 months. The delay is inordinate one. Recently, in the case of City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala reported in [2009] 1 CTC 174 the Supreme Court considered the delay in filing the writ petition and held as follows: "19. It is well-settled and needs no restatement at our hands that under article 226 of the Constitution, the jurisdiction of a High Court to issue appropriate writs particularly a writ of mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a writ is an adequate ground for refusing a writ. The principle is that the courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum." In the case of Singh Enterprises v. Commissioner of Central Excise, Jamshedpur reported in [2008] 12 VST 542; 2008 AIR SCW 1461, the Supreme Court considered the delay of 20 months in filing the appeal and held as follows: ....
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....ng the above writ petition. The delay in the present case is nearly 20 months. Hence, the writ petition is liable to be dismissed on the ground of unexplained delay and laches. The second question deals with the merits of the case. Section 3 of the Central Sales Tax Act is relevant to the case, which reads as follows: "3. When is a sale or purchase of goods said to take place in the course of inter-State trade or commerce.-A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase,- (a) occasions the movement of goods from one State to another; or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another." The said provision is already a subject-matter of interpretation by the apex court in a number of judgments. (i) In the case of South India Viscose Ltd. v. State of Tamil Nadu reported in [1981] 48 STC 232; [1981] 3 SCC 457, the Supreme Court has considered the scope and held as follows: (at pages 237-38 of STC) "11. In the instant case there is a clear evidence of the existence of a prior contract of sale as per terms of the all....
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....re also the assessee had its factory in the State of Tamil Nadu. Its registered office was at Calcutta but it had branch offices at Madras, Bombay and other places. A Bombay buyer wrote to the Bombay branch of the appellant in that case asking for the lowest quotation in respect of the goods which were being manufactured in the factory in Tamil Nadu. After some correspondence between the Bombay branch and the Madras branch, the Bombay branch wrote to the Bombay buyer giving all the required particulars. The Bombay buyer thereafter placed an order with the Bombay branch for certain goods. The Bombay branch informed the Madras branch about the order placed by the Bombay buyer. On receipt of the invoice from the Madras branch the Bombay branch wrote to the Bombay buyer that some of the goods indented by him were ready for despatch and asked for despatch instructions. On receipt of such instructions, the Bombay branch asked the Madras branch to send goods to Bombay. The railway receipts were sent through the Bombay branch. The goods were delivered to the Bombay buyer through clearing agents and the insurance charges were collected from the Bombay buyer. The assessee claimed in the a....
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....h delivery orders trucks used to be delivered in the State of Bihar to be taken over to the territories assigned to the dealers. Since under the terms of the contracts of sale the purchasers were required to remove the goods from the State of Bihar to other States, no question arose in the case whether it was or was not necessary for a sale to be regarded as an inter-State sale that the contract must itself provide for the movement of goods from one State to another. If a contract of sale contains a stipulation for such movement, the sale would, of course, be an inter-State sale. But it can be an inter-State sale, even if the contract of sale does not itself provide for the movement of goods from one State to another but such movement is the result of a covenant in the contract of sale or is an incident of that contract. " (iii) In the case of Commissioner of Sales Tax, U.P., Lucknow v. Suresh Chand Jain reported in [1988] 70 STC 45; [1988] Supp SCC 421, the Supreme Court has held as follows: (page 47 of STC) "4. The principles of inter-State sales were well-settled. In Bengal Immunity Company Limited v. State of Bihar [1955] 6 STC 446 (SC) Justice Venkatarama Ayyar had held ....
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....tances as to in which State the property in the goods passes. It may pass in either State and yet the sale can be an inter-State sale. Therefore, for the purpose of section 3(a) it is not necessary that a contract of sale must itself provide for the movement of goods or that the movement of goods must be occasioned specifically in accordance with the terms of the contract of sale. That apart, if, however, it is established on facts placed on record that the movement of goods was occasioned on account of the contract of sale." (v) In the case of State of Orissa v. K.B. Saha and Sons Industries Pvt. Ltd. reported in [2007] 7 VST 214, wherein the Supreme Court has held as follows: "(i) that in order that a sale might be considered to be one in the course of inter-State trade what was important was that the movement of goods and the sale must be inseparably connected. It was not necessary that there had to be an existent contract of sale incorporating an express or implied provision regarding inter-State movement of goods. Though mere knowledge about the ultimate destination was not sufficient, the cumulative effect of the factual scenario had to be considered." (vi) In the ca....