13. Whether merely because transport receipts were not produced sale can be taxed as local sale, when it is inter State sale.

Held – No.

The claim of appellant about interstate sales liable to tax under C.S.T. Act was disallowed in the absence of despatch proof.

In First Appeal appellants claim was allowed to the extent where transport receipts are produced. However, where such transport receipts or any other despatch proof is not produced, the appellants claim was disallowed. In Second Appeal before the Tribunal appellant produced relevant documents, such as purchase orders, delivery challans, sale bills etc. in respect of disputed sales. Copies of purchase orders which had caused these sales were produced. Appellant emphasised on the clear instructions to deliver the goods to the buyers destination in other states.

The appellant also submitted that the goods are not always sent through the regular carriers. Sometimes they are sent through the appellants own carrier and in such circumstances, it would not be possible to produce the carriers transport receipt, that does not mean that the goods have not moved to other states. Appellant also produced confirmatory certificates given by the buyer, that the goods have been delivered by the appellant at their destinations in the respective states.

On the other hand revenues argument was that in the absence of despatch proof, the prima facie presumption is that the concerned buyer have taken the delivery of the goods in the Maharashtra and therefore these sales are local sales.

Tribunal, did not agree with this submission because appellant produced certain documents in support of his claim but there is no material with the department to support their finding. Tribunal also observed that these sales are also supported with Form ‘C’ issued by the concerned buyers. It is thus obvious that for the said buyer its inter State purchases and they are obliged to show the disposal thereof in their state on the basis of counterfoils of the ‘C’ forms issued by them. The interstate movement of goods is not disputed by the Dept.

The Tribunal relied on judgment of Bombay High Court in the case of Nivea Times (108 STC 6) Appellants reliance on the judgment of Gujarat High Court in the of Pure Beverages Ltd. (142 STC 522) is also accepted, wherein Hon'ble High Court observed that it is an established position that the burden of proving an averment would be on the person making such averment. In the present case, it is the Revenue which is averting that there is no movement of goods and hence the Revenue will have to discharge the onus. The appeal of appellant is allowed.

[Swastik Plastics SA Nos. 257 & 258 of 2005 decided on 29-3-2006, Shri G. G. Kochrekar, Member of Third Bench delivered the judgment. Shri V. P. Patkar, Advocate appeared for the appellant.]

14. Whether purchases from agriculturist are purchases from Unregistered Dealer, and liable to purchase tax u/ss. 13 and 13AA?

Held – Yes

The appellant is engaged in the business of buying and selling of various types of seeds. The appellant purchased ‘seeds’ from various agriculturists. The seeds so purchased from the agriculturists and processed, graded and then sold in the market. Part of these seeds are sold in Maharashtra, and part of them are sent to the appellants branches/agents situated in other states.

While assessing for the financial years 1991-92, 1992-93, 1996-97 to 1999-2000 the assessing authority levied purchase tax u/s. 13 on the purchase of seeds from agriculturist being U.R.D. In first appeal the levy was confirmed.

In Second Appeal before the Tribunal, (S.A. 24 to 27 of 2004 and 2110 and 2111 of 1998 decided 18-7-2005) they levy was confirmed, however remission in interest u/s. 36(3)(b) was granted.

The appellant preferred Reference Application, wherein following question was referred.

Whether on the facts and circumstances of the case –

1. Whether Hon'ble Tribunal was right in holding that on the true and correct interpretation of section 2(11) read with Exception-1 of the Bombay Sales Tax Act, 1959, the purchases effected by the appellant – applicant from agriculturists were liable to purchase tax u/ss. 13 and 13AA of the Bombay Sales Tax Act, 1959?
    

2. Considering the whole scheme of the Bombay Sales Tax Act, 1959, which is a single point levy of tax, the sales of agriculturists which are not liable to sales tax, whether the corresponding purchases by the appellant – applicant which is the other side of the same transaction, can be held liable to purchase tax u/ss. 13 and 13AA of the Bombay Sales Tax Act, 1959?
    

3. Whether purchase tax u/s. 13 which is an alternate to sales tax under the scheme of the Act can be levied on transactions on which under the Scheme of the Act, sales tax is not leviable? Also, purchase tax u/s. 13AA being an additional levy can be imposed?

In Second Appeal and in Reference Application the appellants contention was that the agriculturists are specifically excluded from the definition of dealer u/s. 2(11). Therefore, whatever sale effected by agriculturists remain outside the scope of B.S.T. Act. If these sales are legally not taxable, then naturally the purchases thereof in the hands of the appellant — which is the other side of the same transaction would also not be legally liable to tax. According to appellant if these transactions are attempted to be taxed by levying purchase tax then the very legislature intention not to tax transactions of agriculturist would be defeated. The appellant also relied on the report of select committee, wherein select committee had categorically opposed the retention of the concept of purchase tax.

It was also canvassed that BST Act is basically a single point taxation scheme whereunder the purchase tax is an alternate to sales tax, when no sales tax is payable by the agriculturists and there is no question of there being compensatory levy of purchase tax.

Hon'ble Tribunal did not agree with the appellants submission because purchases of seeds by the appellant from agriculturists who are clearly persons being not dealers under BST Act. Since the seeds so purchased are from URD are not sold in Maharashtra, the purchase tax is attracted.

The appellant who himself is not an agriculturist, is naturally liable to pay purchase tax on the said purchase.

Hon'ble Tribunal relying on the decision of C. R. Sons vs. State of Gujarat (50 STC 12) rejected the reference, because there is no ambiguity in the relevant statutory provision and therefore no question of law arises.

[Maharashtra Hybrid Seeds Co. Ltd. Jalna Ref. Appl. Nos. 93 to 98 of 2005, decided on 29-3-2006 Shri G. G. Kochrekar, Member of Third Bench delivered the judgment. Shri D. H. Joshi, Advocate, appeared for the applicant].