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2014 (7) TMI 657

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....he course of his business, the petitioner is required to transport kerosene to the place of the purchasers. Since kero sene is flammable liquid/oil, the same requires to be transported in the specified tankers. On November 4, 2003, the petitioner raised sale invoices bearing Nos. 626, 627 and 628 in favour of M/s. Jai Bherunath Traders, C/o. K.F. Jain, Shop No. 5, Khanwell Road, Rakholi Village Silvasa (hereinafter referred to as the purchaser) and the kerosene was consigned along with the respective delivery notes bearing Nos. 6261404, 8261405 and 8261406 dated November 4, 2003. The case of the petitioner is that he had complied with section 28A(2) read with rule 23B of the KST Rules. The kerosene was transported in the tankers bearing No. MH 04 P 6395, MH 04 F 4698 and MH 04 BG 8296 on the same day. The drivers of the respective vehicles had tendered the aforesaid documents at the Mukka check-post on arrival. The Commercial Tax Officer in-charge of the check-post Mukka, issued an endorsement on the basis of suspicion that the consignee/purchaser is not in existence. The endorsements even dated November 5, 2003 issued under section 28A(3B) of the KST Act were served on the drivers....

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....is of the said material, he recorded a finding that the dealer is not in existence, no actual business was carried out, and the consignment mentioned by the selling dealers was found to be bogus. He also recorded at page No. 35 that the ACCT of Sales Tax of Dadra and Nagar-Haveli Unit in their letter No. 5-11-2003 has reported that the location of the purchaser has been inspected and found closed. To rebut this material on record, the assessee/petitioner produced the copy of the registration certificate. It was also contended on behalf of the appellant that the investigation conducted by the intelligence wing was not in relation to particular dealer on specific point. Repelling the said contention, it was held that on verification of the records and spot inspection of the business premises, it is noticed that the purchaser has obtained registration certificate but he has not filed any returns and failed to pay any taxes from the date of obtaining the registration certificate till the date of their visit. Further it discloses that he personally visited the premises at the address given of the purchaser and found nobody is carrying out S. K. O. dealings and not even a name board is i....

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....se documents were produced before the assessing authority, the assessing authority refused to act on the said documents and refused to grant the benefit. Aggrieved by the said order, when the assessee preferred an appeal before the Joint Commissioner of Commercial Taxes, the Joint Commissioner looked into those documents and found that the purchaser is registered with the said authorities, the authorities have issued a C form and in view of the C form being issued, the petitioner/assessee is entitled to the benefit and granted the benefit and the said order has attained finality. In the light of this material, the findings recorded by the three authorities in this case is unsustainable and therefore, she submits, a case for interference with the said order is made out. Per contra, learned counsel appearing for the Revenue submitted that the assessee was unable to rebut the presumption arising under section 28(4) of the Karnataka Sales Tax Act, 1957. Further, when the check-post officer recorded a factual finding that the purchaser is not in existence, is not carrying on any business and also the finding that the goods having crossed the frontiers of Karnataka, has no document show....

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....ing from June 23, 2003 up to November 4, 2003 and the total amount involved is Rs. 6,03,39,078. A bare perusal of the signature of the proprietor on the form shows two different signatures. The assessee has not produced to this date any document to show that the said goods crossed the frontiers of Karnataka and entered the adjoining State. Similarly, no material is produced to show that the purchaser dealt with the kerosene purchased by the purchaser in any manner. No material is produced to show the amount received by the assessee from the purchaser towards the sales made, no bank statements are produced. On the contrary, when original form-"C" was produced, it was not accepted by the authorities as it did not infuse confidence in them. The said form C is dated July 7, 2003 and in the said form Rs. 6,03,39,078 has mentioned as the total amount of purchases made as per the enclosed statement. In the records, we do not find the enclosed statement. Subsequently, it is the case of the assessee that he obtained another copy of the said declaration. This copy does not mention the date of issue. However, along with C form, we find an annexure showing the transaction between the parties f....