TaxTMI 
TaxTMI 
2016 (2) TMI 543
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.... (b) that this Hon'ble Court be pleased to further declare that the circular no. 16T of 2007 dated 20.2.2007 read with Circular No. 5T of 2009 dated 29.1.2009 alone are legal, valid and correct; (c) that this Hon'ble Court be pleased to declare that the Section 6A is inapplicable to interstate movement of final goods returned by a job workers to his customer, after job work. (d) In the alternative and without prejudice to prayer (c) above, this Hon'ble Court be pleased to declare that Section 6A is ineffective, incomplete and inoperative is of no avail. (e) that this Hon'ble Court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India, calling for the records pertaining to the Petitioner's case and after going into the legality and validity thereof to quash and set aside impugned order dated 17.07.2015 passed by the Tribunal in Appeal No.447/2015 and impugned Assessment Order dated 14.08.2014; (f) that this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ or order or di....
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....Sales Tax under the provisions of MVAT Act and the Central Sales Tax Act, 1956 (for short "the CST Act"). Annexure 'J' is a copy of one such notice. 8) The Petitioner, during the course of assessment, appeared before the Deputy Commissioner and submitted that the present transaction is a job work only and hence not liable to sales tax. The Petitioner filed detailed written submissions and complains that despite this, an order of assessment has been passed on 14th August, 2014, which was received by the Petitioner on 7th November, 2014. 9) The case of the Sales Tax Department as reflected in the assessment order is then set out in the Petition from para 12 onwards and the Petitioner urges that it filed an Appeal to the Joint Commissioner of Sales Tax. An order on the stay application therein imposing a condition of part payment of Rs. 7,96,00,000/- under the CST Act and Rs. 35,00,000/- under the MVAT Act was passed dated 24th March, 2015. The Petitioner preferred an Appeal against this order of the Joint Commissioner of Sales Tax dated 24th March, 2015 before the Tribunal and the Tribunal dismissed the VAT Appeal No. 447 of 2015 under the CST Act and ordered deposit of Rs.....
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....ption from tax on the ground that there was in fact no sale." 11(h) Relevant portion of section 6A(1) (as initially enacted) (omitting unnecessary words) reads as follows: "S. 6A. Burden of proof, etc., in case of transfer of goods claimed otherwise than by way of sale:- Where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and for this purpose he may furnish to the assessing authority, within the prescribed time ..............., a declaration, .........., containing the prescribed particulars .........., along with the evidence of despatch of such goods" 11(i) Vide Notification dated 9th February, 1973, Rule 12(5) was inserted in Central Sales Tax (Registration and Turnover) Rules, 1957. It states that declaration referred to section 6A(1) shall be in Form 'F'. 11(j) The said 'F' ....
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....trade circular 16T of 2007 dated 20th February, 2007 was re-affirmed by the Respondents themselves vide circular 5T of 2009 dated 29th January, 2009. The respondents, duly noted decision of the Hon'ble Allahabad High Court in Ambica Steels Limited, but distinguished it. Following is the relevant portion of said circular dated 29th January, 2009:- "The High Court has take a view that it would be necessary to furnish declarations in Form F in such instances (job work). It also appears that the question whether section 6A of the CST Act deals only with transactions between agent and principal to principal basis was not raised before the High Court. 3. In the trade circular dated 20th February, 2007, a view has been taken that when goods are sent to another state for job work, the transaction will normally be on a principal to principal basis. It is further stated in the circular that section 6A will have no applicability as regards the transactions where the goods are sent on a principal to principal basis. .......... There is, however, no change in the views of the Sales Tax Department as expressed in the said Trade Circular." 11(s) The order dated 31st March, 2009 of the ....
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....are only provided in section 3. Therefore, under section 6A(2) the assessing officer would have to establish the requirements of section 3 i.e. (i) a transaction of sale has taken place and (ii) the sale occasioned a movement of the goods sold inter-state. While section 6A(1) may aid in proving the latter, it will not dispense with primary requirement that a completed sale has indeed taken place. 11(y) If section 6A is interpreted in such a manner so as to conclude that the mere non production of the prescribed form will itself deem a return of goods as a sale, then clearly the expression .......... "no inter-state sale has been effected ....." employed in section 6A(2) would become redundant. Such an interpretation of section 6A is therefore not warranted. 11(z) Therefore, when contextually interpreted, with regard to the scheme of the CST Act, the object and purpose of section 6A and the words employed therein, it is clear that section 6A(1) itself does not deem a movement to be a sale, but only aids in characterising an already concluded sale as an inter-state sale. 11(aa) Accordingly, section 6A is applicable only for an established sale effected by a dealer from wherever ef....
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....iable to pay tax under the CST Act and not when a dealer claims that he has effected no sale. 13) In the written arguments, all these submissions are elaborated and with the assistance of additional materials. 14) In support of the contentions, Mr. Sridharan places reliance on the following decisions:- (i) Sales Tax Officer, Pilibhit vs. Budh Prakash Jai Prakash, AIR 1954 SC 459. (ii) Balabhagas Hulaschand vs. State of Orissa, (1976) 2 SCC 44. (iii) Consolidated Coffee Ltd. and Anr. vs. Coffee Board, Bangalore, (1980) 3 SCC 358. (iv) Tata Iron and Steel Co. Limited, Bombay vs. S. R. Sarkar and Ors., AIR 1961 SC 65. (v) The State of Bihar and Anr. vs. Tata Engineering and Locomotive Co. Ltd., 1970(3) SCC 697. (vi) C. I. T., Bangalore vs. B. C. Srinivasa Setty, (1981) 2 SCC 460. (vii) Tata Sky Limited vs. State of Madhya Pradesh and Ors., (2013) 4 SCC 656. (viii) Govind Saran Ganga Saran vs. Commissioner of Sales Tax and Ors., 1985 (Supp) SCC 205. (ix) Ambika Steels Limited vs. State of U. P. and Ors., (2008) 12 VST 216 (All). (x) Ambika Steels Limited vs. State of U. P. and Ors., (2009) 24 VST 356(SC). (xi) A. C. P. L. Jewels Private Ltd. vs. Union of India a....
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....7 ILR Mad. 423. (xxxvii) Commissioner of Central Excise and Customs, Kerala vs. Larsen and Toubro Ltd., 2015 (39) STR 913 (SC). (xxxviii) The Additional Commissioner of Sales Tax vs. M/s. Kirloskar Copeland Ltd., Sales Tax Application No. 10 of 2012 (Bombay High Court), dated 8th May, 2014. 15) On the other hand, Mr. Sonpal, learned Counsel appearing on behalf of the Respondents would firstly submit that this Writ Petition itself cannot be entertained, as the Petitioner has ample opportunities to challenge the impugned order of assessment of tax. 16) Secondly, Mr. Sonpal would submit that it is futile to urge that this controversy is alive. The controversy stands fully answered and concluded by the authoritative pronouncement of the Hon'ble Supreme Court of India in the case of Ashok Leyland Ltd. vs. State of Tamil Nadu and Anr. reported in AIR 2004 SC 2836. 17) Mr. Sonpal also relies upon the circulars and to submit that the understanding of the officer would not be decisive and conclusive. Further, the circular now impugned does not run counter to the legal position as enunciated. The enunciation of the legal position is that the CST Act contains in Chapter III provisi....
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....ers use them by subjecting them to reprocessing, which is the work undertaken by the Petitioner. It has described the process of receipt of spent catalyst from various customers from outside and within the State of Maharashtra and how the reprocessing is done. The spent catalyst are reprocessed and recharged and such transactions have been termed as job work/labour undertaken by the Petitioner. The Petitioner claims to have charged their customers only for this job work. In the assessment order, the Assessing Officer has held that the remarkable aspect of the entire process is that there is no one to one co-relation between the spent catalyst received and the fresh catalyst supplied to the customers. The Petitioner levy charges on the basis of weight of fresh catalyst supplied, which are obviously based on the price of the fresh catalyst, after considering the cost of the recovered precious metals from the spent catalyst and cost of such recovery. The Assessing Officer observes that the Petitioner has the facility of accelerated delivery on payment of extra charges and this is possibly only if fresh catalyst containing equivalent of metal in the spent catalyst is delivered. 20) Th....
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....e sale or purchase of such goods of special importance shall be subject. 24) Therefore, it is an enactment formulating principles for determining when a sale or purchase of goods takes place in the course of inter-state trade or commerce or outside a State or in the course of imports into or export from India. The enactment also seeks to levy, collect and distribute taxes on sales of goods in the course of such trade. Chapter I contains the preliminary provisions. Section 2 falling thereunder is titled as 'Definitions'. In that, term "dealer" is defined in section 2(b). The term "goods" is defined in section 2(d). Section 2(e) defines the term "prescribed" to mean prescribed by rules made under this Act and then comes section 2(g), which defines the term "sale". Section 2(g) and 2(h) read as under:- "2(g) "sale", with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another for cash or deferred payment or for any other valuable consideration, and includes,- (i) a transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (ii) a transfer....
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....ding to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in cases where such cost is separately charged. 26) Chapter II contains sections to enable formulation of principles for determining when a sale or purchase of goods takes place in the course of inter-State trade or commerce or outside a state or in the course of import or export. 27) Section 3 is the first section falling in this Chapter and reads as under:- "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. Explanation 1. - Where goods are delivered to a carrier or other bailee for transmission, the movement of the goods shall, for the purposes of c....
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....5, when a sale or purchase of goods is said to take place in the course of import or export is specified. 32) By Chapter III, inter-State Sales Tax and the liability to tax on the same is the aspect dealt with and section 6 and 6A falling in the same Chapter read as under:- "6. Liability to tax on inter-State sales. - (1) Subject to the other provisions contained in this Act, every dealer shall, with effect from such date as the Central Government may, by notification in the Official Gazette, appoint, not being earlier than thirty days from the date of such notification, be liable to pay tax under this Act on all sales of goods other than electrical energy effected by him in the course of inter-State trade or commerce during any year on and from the date so notified: Provided that a dealer shall not be liable to pay tax under this Act on any sale of goods which, in accordance with the provisions of sub-section (3) of section 5 is a sale in the course of export of those goods out of the territory of India. (1A) A dealer shall be liable to pay tax under this Act on a sale of any goods effected by him in the course of inter-State trade or commerce notwithstanding that no t....
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....sular or diplomatic agent of - (i) any foreign diplomatic mission or consulate in India; or (ii) the United Nations or any other similar international body, entitled to privileges under any convention or agreement to which India is a party or under any law for the time being in force, if such official, personnel, consular or diplomatic agent, as the case may be, has purchased such goods for himself or for the purposes of such mission, consulate, United Nations or other body. (4) The provisions of sub-section (3) shall not apply to the sale of goods made in the course of inter-State trade or commerce unless the dealer selling such goods furnishes to the prescribed authority a certificate in the prescribed manner on the prescribed form duly filled and signed by the official, personnel, consular or diplomatic agent, as the case may be. 6A. Burden of proof, etc., in case of transfer of goods claimed otherwise than by way of sale. - (1) Where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any othe....
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....als with a sale of any goods in the course of inter-State trade or commerce occasioning the movement of such goods from one State to another or having been effected by a transfer of documents of title to such goods during their movement from one State to another. The subsequent sale during such movement would be exempt from tax under the CST Act, provided the goods are of the description referred to in sub-section (3) of section 8. Thus, the exemption is in specified case and that is why sub-section (2) contains a non obstante clause. However, there is a proviso and which requires furnishing of a certificate to the prescribed authority. The first proviso to sub-section (2) sets out this requirement and by second proviso, other requirement and to furnish a declaration referred to in clause (b) of the first proviso is dispensed with on the condition specified in the second proviso. Then, by sub-section (3), certain sales in the course of inter-State trade or commerce would not attract the tax provided the sale in the course of inter-State trade or commerce is to any official, personnel, Consular or diplomatic agent of any foreign diplomatic mission or consulate in India or to United ....
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....produce the circular under challenge, which reads as under:- "Office of the Commissioner of Sales Tax, 829, 8th Floor, Vikrikar Bhavan, Mazgaon, Mumbai - 400 010 TRADE CIRCULAR To .................... .................... No. VAT/MMB/1008/15/Adm-6/B (Trade Cir. No. - 2 of 2010) Mumbai, Dt. 11/01/2010 Sub: Tax Treatment of Goods sent to other States. Ref: 1. Trade Circular 16T of 2007 dated 20th February 2007. 2. Trade Circular 5T of 2009 dated 29th January 2009. Gentlemen/Sir/Madam, This office had issued above referred Trade Circulars explaining scope of section 6A of CST Act, 1956. In the Trade Circular dated 20th February 2007, a view had been taken that section 6A of CST Act, 1956 deals only with transactions between principal and agent and that it applies in those cases where the movement of goods is to the place of business of the dealer himself in another state or to his agent or his principal in another state. It was viewed that section 6A does not deal with transactions which are on a principal to principal basis. Hence, the non-sale transactions like job work which are transactions from principal to principal basis were viewed to be o....
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....essarily by all States. It may be that the Maharashtra Government and the Commissioner of Sales Tax in Maharashtra would issue declarations in form 'F', but in the event another State does not follow this practice or does not issue declaration in that form, then, it would be necessarily held in the State of Maharashtra that the movement of goods is occasioned by sale. In that event, the burden on the dealer in terms of section 6A of the CST Act can never be taken to be discharged. That would be a travesty of justice. If it is not possible for the dealer to obtain the declaration in that form from another State for, that State may not follow this practice or refuses to do so for reasons beyond the control of the dealer, then, he would have to bear the liability. Mr. Sridharan would submit that all prior Circulars and which stand withdrawn by this latest Circular did not take this view. 38) He relies upon Circular 16T of 2007 dated 20th February, 2007 and Trade Circular 5T of 2009 dated 29th January, 2009. We would reproduce these Circulars as well. They read as under:- "8th floor, Vikrikar Bhavan, Mazgaon, Mumbai - 400 010 TRADE CIRCULAR To ............... ........
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....o represent another in dealing with third persons. The person for whom such work is done or who is so represented is called the "principal". (2) Normally, persons acting as brokers, factors, auctioneers, commission agents, del credere agents etc. are the agents contemplated under this Section. It may be added that the contract of agency may be in writing, may be oral or may be inferred from the conduct of the parties and the circumstances. An agent differs from a servant or an independent operator. In an agency, the principal has a right to direct what work the agent has to do. In case of a servant, the principal has a further right to direct how the work is to be done. An independent operator is different from an agent or a servant. An agent, in the matter of agency, is bound to act subject to the direction and control of the principal. But an independent operator merely undertakes to perform certain specified work or produce a certain specified result. The manner and means of performance and production are at the discretion of the operator except in so far as they are specified by the contract. 4. Therefore, when a dealer sends any goods to another person located in a diffe....
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....ed under the said sub-rule does not apply where the goods are sent to another State for job work or for manufacturing etc. on a 'principal to principal' basis. Subject to the other provisions of that sub-rule, the reduction in set-off will apply only when the goods are sent to another State, not by reason of sale, to the dealer's own place of business, or to his agent or where the dealer is an agent, to the place of his principal. 8. There would be contingencies where a dealer located in Maharashtra receives goods, not by way of purchase, from another State. The clarifications given in this circular would apply, mutatis mutandis, to such inward movement of goods from another State. 9. This circular cannot be made use of for legal interpretation of provisions of law, as it is clarificatory in nature. If any member of the trade has any doubt, he may refer the matter to this office for further clarification. 10. You are requested to bring the contents of this circular to the notice of all the members of your association. Yours faithfully, (B. C. KHATUA.) Commissioner of Sales Tax, Maharashtra State, Mumbai." ========== o x x o ========== "829, 8th Floor....
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....ers situated in other States may require a declaration in Form F from Maharashtra dealers if any goods are sent from these States to Maharashtra for job work etc. Similarly, if a Maharashtra based dealer sends any goods to another State for job work, then the job worker in that State may require the Maharashtra dealer to issue a declaration in Form F while returning the goods to Maharashtra. It is, therefore, decided that in such cases, declaration in Form F will be issued as per normal procedure to dealers in Maharashtra. There is, however, no change in the views of the Sales Tax Department as expressed in the said trade circular. The Trade Circular will continue to apply for the contingencies laid down in the circular except for the change indicated above. 4. This circular cannot be made use of for legal interpretation of provisions of law, as it is clarificatory in nature. If any member of the trade has any doubt, he may refer the matter to this office for further clarification. 5. You are requested to bring the contents of this circular to the notice of all the members of your association. Yours faithfully, (Sanjay Bhatia) Commissioner of Sales Tax, Maharashtra St....
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....evenue, namely, the Departments in Maharashtra, therefore, decided to issue a declaration in form 'F' as per normal procedure to dealers in Maharashtra. 40) We do not see how a later circular of 2010 runs counter to the two circulars issued earlier or that their withdrawal by the ultimate circular of 2010 would adversely affect every dealer in Maharashtra. Mr. Sridharan is also not right in urging that the judgment of the Allahabad High Court has been interfered with by the Hon'ble Supreme Court of India. His argument is that the judgment of the Allahabad High Court has not been upheld by the Hon'ble Supreme Court of India. 41) For considering this argument, we must refer to the judgment of Allahabad High Court. That judgment, as would be apparent, was rendered by a Division Bench in the case of Ambika Steels Limited vs. State of U. P. and Ors. reported in (2008) 12 VST 216 (All). 42) The Petitioners therein challenged the circular dated 28th November, 2005 issued by the Commissioner of Trade Tax, Uttar Pradesh, Lucknow, wherein it has been mentioned that under section 6A of the CST Act, form 'F' is required to be filed in respect of all transfer of goods....
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....efinition of the word "sale". Section 6 is the charging section and creates liability to tax on inter-State sales. Section 6A puts the burden of proof on the person claiming transfer of goods otherwise than by way of sale and not liable to pay tax under the Central Act. The burden is to be discharged only by furnishing of declaration Form F. The provisions of Section 6 and 6A of the Central Act came up for consideration in the case of Ashok Leyland Ltd. v. State of Tamil Nadu (2004) 134 STC 473 (SC); (2004) 23 PHT 81 (SC). Dealing with sections 6 and 6A of the Central Act, the apex court, in paragraph 33 of the Report, had held as follows: "..... Section 6 of the Act provides for liability to tax on inter-State sales in terms whereof every dealer is liable to pay tax thereunder on sales effected by him in the course of inter-State trade or commerce subject to the exception contained in the proviso appended thereto. Such tax would be leviable notwithstanding the fact that no tax is leviable either on seller or the purchaser under the State tax laws of the appropriate State if that sale had taken place inside the State". ....
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.... down that, under section 6A of the Central Act, the burden would be on the dealer to show that movement of the goods had been occasioned not by reason of any transaction involving sale of goods but by reason of transfer of such goods to any other place of business or to the agent or principal, as the case may be, for which the dealer is required to furnish prescribed declaration form in the absence of which the transfer would be treated as sale. Admittedly, what the petitioners send or receive either for job work or as a return of goods from outside U. P. are goods within the Central Act. They are claiming that the goods have been transferred/received from ex-U.P. Which are not sale and not liable to tax under section 6 of the Central Act. The submission that the transactions where the goods are sent for job work or received for doing job work, do not amount to sale would depend upon the contract entered into between the parties and would be the subject-matter of examination by the assessing authority. Even otherwise, under section 2(g)(ii) of the Central Act, transfer of goods used in execution of works contract is treated to be a sale: if the petitioner claims that it is n....
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....hall be admissible only on form F being furnished by the assessee within the prescribed period. The appellant has deposited a sum of Rs. 1,00,00,000/- (one crore) on December 27, 2008, under protest vide letter of even date. It is made clear that the said amount shall be refunded to the assessee herein within a period of two weeks after the completion of reassessment proceedings, subject to adjustment, if any, in the duty assessed. We are informed that certain State(s) within whose jurisdiction the transferee is located is/are not issuing F forms. In such an eventuality it would be open to the assessing officer to complete reassessment proceedings on its own merits after examining the transaction between the parties, keeping in mind the circumstance that the assessee is not in a position to obtain the F form, for no fault of his. Accordingly, this civil appeal is disposed of with no order as to costs." 45) Mr. Sonpal, therefore, is right in contending that the Hon'ble Supreme Court of India in this brief order did not lay down any legal principle. That order must be read as a whole. The Hon'ble Supreme Court of India does not overturn or reverse the judgment of t....
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....t circumstance into consideration. If that request is made, the Assessing Officer can, depending upon the facts and circumstances of a particular case, pass such orders as are permissible in law. Therefore, we do not agree that the circular of 2010 misinterprets the order of the Hon'ble Supreme Court of India. It neither misreads or misinterprets the judgment of the Allahabad High Court. Throughout the understanding is that the burden is on the dealer and he has to discharge it in the manner prescribed in law. If the burden has to be discharged in the manner set out, then, no other mode or manner is permissible. Therefore, all that the Hon'ble Supreme Court clarifies is that if some States are not issuing 'F' form, then, that approach of a particular State should be brought to the notice of the Assessing Officer in the dealer's State. That the Assessing Officer should be convinced that the dealer made all efforts, but for no fault of his, he could not obtain the 'F' form. Thereupon and pursuant to the liberty given by the Hon'ble Supreme Court of India and the dealer raising the plea, the Assessing Officer, while taking note of it, would consider the....
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.... applicable depending on each taxing statute. The position, as flowing from section 6A(2) and analysed by Mr. Sridharan and in his written submissions at page 11 para 26.1 onwards would support our conclusion for, despite furnishing of the declaration in that form, a clear satisfaction has to be recorded by the Assessing Officer. That satisfaction can be recorded on such inquiry, as he is empowered to make within the meaning of sub-section (2) of section 6A of the CST Act. Therefore, there would be an opportunity to the dealer and within the meaning of this provision to convince the Assessing Officer that he has discharged the burden and the transfer of goods is not by way of sale. In these circumstances, we do not think that there is any difficulty for the dealer to discharge the burden. While discharging the burden, it would be open for the dealer to rely upon the principles as to when an inter-State sale takes place or is deemed to have taken place. He can also rely upon other provisions, namely, section 18A and 22(1)(b) of the CST Act to support his argument. In these circumstances, all the paragraphs of the written submissions and supporting the oral arguments about the positi....