TaxTMI 
TaxTMI 
2023 (8) TMI 1696
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....m "H" and not disputed in the tax evasion report of the Vigilance Wing ? III) Whether the sale for ultimate export can be disallowed when the said transactions were fully supported with documents, evidence and form "H" will it be legally correct and statutorily valid to disallow them violating principles of law already settled? IV) Whether in the facts and circumstance of the case the order of assessment passed U/r. 12 (4)(C) of the CST(O) Rules and affirmed the same by the appellate authorities to justify the GTO and TTO determined at Rs.21,24,026/- ? V) Whether the Ld. Tribunal had legally proceeded and correctly held that the levy of tax, interest and penalty on the transactions made at Rs.19,04,110/- vide invoice No.003/10 dtd. 22.02.2010, which was not disputed in tax evasion report? VI) Whether in the facts and circumstance of the case the order or assessment passed U/r 12 (4) (C) of the CST (O) Rules and affirmed the same by the appellate authorities to justify the penalty imposed At Rs.1,69,992/- U/r. 12(4)(c) of the CST (O) Rules without recording the satisfaction of escapements involved ? 2. The facts leading to filing of this revisi....
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....g to the petitioner, cannot be held that such transaction was escaped. Further, the balance transaction at Rs.1,09,958/- was also rejected on the basis of the report of the Flying Squad. Therefore, the Assessing Officer disallowed the documents due to alleged date of invoice as 24.03.2010 and the shipment was on 11.03.2010. Therefore, imposition of penalty of Rs.1,69,922/- could not have been directed to be paid by the dealer. 5. Aggrieved by the order of assessment dated 11.09.2013, the petitioner preferred first appeal by submitting that the Assessing Officer had simply relied on the evasion report without verifying the details furnished, such as, Form "H", buyer's contract, purchase order, bill of lading and copy of invoices etc. Therefore, determination of GTO and TTO at Rs.21,24,026/- etc. could not have been raised. The addition of Rs.1,09,958/- over and above the transaction made at Rs.20,14,068/-(Rs.19,04,110/- + Rs. 1,09,958/-) amounts to double addition. 6. The Addl. Commissioner of Sales Tax (Appeal), South Zone, Berhampur passed the order of First appeal on 30.08.2016 considering the facts of the case and documents/ evidence produced for claim of exemption u/s....
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....f the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are; (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 12. In Chacko v Mahadevan, (2007) 7 SCC 363, the apex Court held that in a second appeal filed the Court cannot interfere with the findings of fact of the first appellate court, and is confined only to questions of law. 13. As a general principle, the Supreme Court of India in the case of Chandrabhan V. Saraswati, 2022 SCC OnLine SC 1273 laid down as follows:- "33. The principles relating to Section 100 of the CPC relevant for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document ....
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....ed before the appellate forum. 15. The case of State of Odisha V. Ranital Rice Mill, (1994) 93 STC 362 (Ori), was referred to in Kalanauria Trading Co. V. State of Odisha, (2015) 85 VST 342 (Ori) to say that where the conclusion has been arrived at by the Tribunal after making elaborate analysis of fact-situation, what would be the quantum of enhancement does not in all cases involve a question of law. It has been held that where there is absolutely no material to support the conclusion, a question of law arises. But where the Tribunal, after dealing with relevant aspects, fixes up the enhancement at a particular figure, it is a conclusion of facts, giving rise to no question of law. 16. It may be noteworthy to refer to Commissioner of Sales Tax, U.P. V. Kumaon Tractors & Motors, (2002) 9 SCC 379, wherein it has been stated that the Trade Tax Act confers limited jurisdiction to interfere with the order of the Tribunal, i.e., only on "question of law", that too, the said question of law is required to be precisely stated and formulated. Instead of doing so, the High Court could not simpliciter re-appreciate the evidence. 17. In the case at hand, undisputed fact on record, w....
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....nsignment note/bill of lading/railway receipt or goods vehicle record or postal receipt or any other document in proof of export of goods across the customs frontier of India (Certified copy of such air consignment note/bill of lading/railway receipt/goods vehicle record/postal receipt/other document to be enclosed)" Sub-section (4) of Section 5 of the CST Act lays down that "the provisions of sub-section (3) shall not apply to any sale or purchase of goods unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner a declaration duly filled and signed by the exporter to whom the goods are sold in a prescribed from obtained from the prescribed authority. Sub-section (4) of Section 5 of the CST Act which is couched in the negative, meaning thereby that it is mandatory requirement to claim exemption under sub-section (3) of Section 5 that such Certificate of Export is to be furnished in the manner prescribed. Under Rule 7A of the CST (Odisha) Rules, 1957, it is specified that "every registered dealer while filing return under Rule 7, for the month/quarter ending on 30th June, 30th September, 31st December and 31st of March every year, shall f....
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....ii) that the sale must be a part and parcel of the export. The word 'occasion' is used as a verb and means 'to cause' or 'to be the immediate cause of'. Therefore, the words 'occasioning the export' mean the factors, which were immediate course of export. The words 'to comply with the agreement or order' mean all transactions which are inextricably linked with the agreement or order occasioning that export. The expression 'in relation to' are words of comprehensiveness, which might both have a direct significance as well as an indirect significance, depending on the context in which it is used and they are not words of restrictive content and ought not be so construed. 17. It was held by the Constitution Bench that there has to be an inextricable link between local sales or purchase and if it is clear that the local sales or purchase between the parties is inextricably linked with the export of goods, then only a claim under Section 5(3) for exemption under the Sales Tax Act would be justified. The principle which was laid down in the said decision is required to be applied to the facts of the present case in view of....
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....n. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is failure to comply with some requirements which are directory in nature, the noncompliance of which would not affect the essence or substance of the notification granting exemption. *** *** ***" 17.3. In view of above and with reference to several other decisions, in Dilip Kumar & Co., (2018) 9 SCC 1, the Constitution Bench summed up the principles as follows:- "66. To sum up, we answer the reference holding as under: 66.1. Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. 66.2. Wh....