2009 (8) TMI 1118

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....ower oil. According to the revision petitioner, for the assessment year 1994-95, the assessing authority received bills and delivery notes from the Assistant Commissioner (CT) (Enforcement), Salem, regarding movement of oil from Karnataka to Tamil Nadu, which were verified with the accounts of the respondent herein. It came to light that there were 12 suppliers of sunflower oil of the respondent, which, according to the assessing authority, were not accounted for by way of inter-State purchase for the year 1994-95. When the respondent was questioned about the transaction of those 12 consignors, the respondent took the stand that of the 12, there was no transaction at all in respect of serial Nos. 1 to 3 and in respect of serial Nos. 4 to....

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....argued for sustaining the assessment made by the assessing officer. The learned Authorised Representative for the respondent argued that at the time of verification itself the dealer in statement dated December 17, 1995 has stated that the consignment mentioned in items 1, 2 and 3 were not purchased by them and in respect of consignments mentioned in item Nos. 4 to 12, they had returned back the goods to the consignors due to poor quality and in support of their claim for return of goods, they had furnished xerox copies of letter dated November 21, 1994, November 14, 1994, September 18, 1994, September 28, 1994, November 22, 1994, November 23, 1994, November 25, 1994 and November 18, 1994 in which it is stated that the goods were returned b....

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....rove beyond doubt that he had not taken delivery of the consignment and sold it and it is up to the Department to prove that the appellant has taken delivery of the goods and sold without bringing them into account.' Burden of proof that there is a taxable sale lies upon the taxing authority according to Hardeodas Jagannath v. State of Assam [1970] 26 STC 10 (SC) and State of Orissa v. Narahari Pradhan [1972] 30 STC 558 (Orissa). Since the Department has not proved that the purchase of S.F. oil, coconut oil and groundnut oil amounting to Rs. 40,27,705 relates to the respondent, the Appellate Assistant Commissioner has rightly set aside the assessment and consequential penalty. To conclude, the State appeals stands dismissed." W....