The State Of Tn Rep Bny The v. Tvl.Jain Agencies

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22.01.2021 CORAM :

The Honourable Mr.Justice T.S.SIVAGNANAM and The Honourable Ms.Justice R.N.MANJULA W.P.No.21154 of 2002 The State of Tamil Nadu, Represented by The Deputy Commissioner (CT), Chennai (North) Division, Chennai - 600 006.

...Petitioner

Vs

1. Tvl.Jain Agencies, No.18, Kesava Iyer Street, Chennai - 600 003.

2. The Secretary, Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai - 104.

...Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to call for the records relating to the common order of the second respondent made in S.T.A.No.14 of 1998 dated 07.04.2000 and quash the same by issue of Writ of Certiorari.

For Petitioner:

Ms.G.Dhanamadhri, Government Advocate (Tax) For Respondents: No Appearance for R1 R2 - Tribunal

ORDER

(Made by T.S.Sivagnanam,J) This writ petition has been filed by the Revenue challenging the order passed by the Tamil Nadu Sales Tax Appellate Tribunal, Chennai ('the Tribunal' for brevity) in S.T.A.No.14 of 1998 dated 07.04.2000.

2. Heard Ms.G.Dhanamadhri, learned Government Advocate appearing for the petitioner. Though the first respondent has been served and the name is printed in the cause list, none appeared on their behalf.

3. The first respondent is a registered dealer under the provisions of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as 'TNGST Act') on the file of the Deputy Commercial Tax Officer, Moore Market (South) Assessment Circle, under the provisions of the Central Sales Tax Act, 1956 (hereinafter referred to as 'CST Act'). The assessment order under consideration is 1993-94. For the said assessment year, the first respondent was finally assessed on a total and taxable turnover of Rs.54,38,595/- against the return turnover of Rs.66,42,222/- under the provisions of the CST Act. The first respondent dealer claimed exemption in the returns on their turnover claiming a sum of Rs.66,42,222/- as high sea sales and the taxable turnover was returned as NIL. The Assessing Officer, on examination of the returns filed by the first respondent dealer, rejected the contention on the ground that the bills of entry show that the goods were cleared by the first respondent dealer themselves.

4. The first respondent filed an appeal before the Appellate Assistant Commissioner (CT) - 1, Chennai in Appeal No.CST AP.12/97. The first appellate authority, after going through the documents filed by the first respondent, held that the goods crossed the customs area and have been cleared by the ultimate buyer. A clear finding has been given by the first appellate authority in this regard. Accordingly, the appeal filed by the first respondent was allowed. Aggrieved by the same, the Department preferred an appeal before the Tribunal.

5. Contending that the bills of entry contain the name of the first respondent as the importer invariably in all imports, the buyers name of the goods which were said to have been sold on high sea sales basis did not find place. Further, the Department contended if the case of the dealer is to be accepted, then it should have been shown that bills of entry should have been filed in the name of the ultimate buyer and not in the name of the first respondent. The Tribunal reconsidered the factual position and concurred with the first appellate authority by holding that upon examination of the relevant documents produced by the dealer and the endorsements contained therein, the transfer of goods were effected prior to the clearances from the customs area and therefore, the first respondent is entitled for exemption under Section 5(2) of the CST Act. The said order has been challenged in this writ petition.

6. The contentions which were advanced by the Department before the Tribunal have been reiterated before us by the learned Government Advocate and it is submitted that the document of title to goods continued to remain in the name of the first respondent dealer and merely because there was an

endorsement in the reverse of the bills of entry, it cannot be taken to be a sale in the course of import.

7. After having elaborately heard the learned Government Advocate and carefully perused the materials on record, we find that the first appellate authority who is the fact finding authority examined all the documents and came to the conclusion that the goods were cleared to the ultimate buyer after payment of customs duty, though the bills of entry were filed in the name of the first respondent dealer. This factual position was reconsidered by the Tribunal and the finding was affirmed. Therefore, by examining the correctness of the said order in a writ petition filed under Article 226 of the Constitution of India, we are not expected to re-appreciate the evidences, which were placed before the fact finding authority, unless it is shown that the finding is utterly perverse. On re-examining all the facts of the case, we find that the factual finding rendered by the first appellate authority and confirmed by the Tribunal cannot be perverse or wholly unsustainable and therefore, we decline to interfere with the order passed by the Tribunal.

8. In the result, the writ petition is dismissed and the order passed by the Tribunal is confirmed. No costs. Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar To

1. The Deputy Commissioner (CT), Chennai (North) Division, Chennai - 600 006.

2. The Secretary, Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai - 104.

+1cc to The Special Government Pleader(Taxes), SR.NO.3894 AKM/19.02.21/3P-4C/ W.P.No.21154 of 2002 22.01.2021