1994 (3) TMI 377

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....Amendment Act, however, the dealer was liable to pay the tax only where he had collected it, for the reason that the period concerned herein fell within what the Tribunal called the 'protected period'. (The period concerned herein is from 1-4-1968 to31-3-1969.) The burden of proving that he has not collected the tax was, however, placed upon the dealer, by the said Amendment Act. Sub-sections (1) and (2) of Section 10 of the said Amendment Act read thus:               "10. (1) Where any sale of goods in the course of inter-State trade or commerce has been effected during the period between the 10thday of November, 1964 and the 9th day of June,1969 and the dealer effecting suc....

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....ax has been collected. In our opinion it is only when there is prima facie proof to show that the tax has been collected, then the occasion arises for the assessee to rebut the presumption that may arise in the context of the prima facie proof that the tax has been collected by him during the protective period." 4. For the said proposition, the Tribunal relied upon a decision of the Mysore High Court in Spencer & Co. Ltd. v. State of Mysore. The proposition enunciated in the said decision is that the dealer can be held to have collected the tax under the Act, if:                  "[F]rom the facts and circumstances, it can be inferred that the seller intended ....

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....as been upheld by the High Court. The endorsement in the bill that the price charged is inclusive of tax is prima facie proof against the dealer's contention. Unless he produces material to displace the presumption arising from the said endorsement, he must be held to have collected the tax. 5. It is faintly urged before us by the learned counsel for the respondent-dealer that he was not given a due opportunity to establish that he did not collect the tax and, therefore, the matter must be remanded to afford him such an opportunity. It is, however, not brought to our notice that any such grievance was made at any stage of the proceedings. In the circumstances, no such opportunity is called for. 6. We may record that the Tribunal's finding....