IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 ST.Rev..No. 78 of 2005 ------------------------------ TA.220/2002 of S.T.A.TRIBUNAL,ADDL.BENCH,KZD. PETITIONER/APPELLANT/APPELLANT/ASSESSEE --------------------------------------------------------------------- THE WESTERN INDIA PLYWOODS LTD., BALIAPATANAM, KANNUR, REP. BY ITS EXECUTIVE DIRECTOR, P.K.MOHAMAMED. BY ADV. SRI.V.V.ASOKAN SRI.S.AMINA RESPONDENT: ----------------------- STATE OF KERALA, REP. BY DEPUTY COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM. BY ADV. SPL.GP SHRI VINOD CHANDRAN THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: H.L.Dattu, C.J. & T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - S.T.Rev. No.78 of 2005 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of May, 2008. O R D E R H.L.Dattu, C.J. This revision petition pertains to the assessment year 1996-97 under the provisions of Central Sales Tax Act. The assessee company has raised the following two questions for our consideration and decision: “A. Whether the Tribunal is justified in law in insisting for production of F Forms in support of a claim for exemption in respect of the turnover pertaining to stock transfer/branch transfer under section 6A of the CST Act? B. Is not an assessee entitled to adduce other evidence in support of the claim for exemption in respect of branch transfer/stock transfer, when in law it is not mandatory that F Form should be produced and when the prescription of F Form is only an enabling one? 2. In our opinion, the question of law so framed by the assessee need not detain us for long. It was well accepted principle prior to amendment made to sub-section (1) of Section 6A, that is prior to 11th May, 2002, the filing of Form F by a dealer who sent the goods to another State on consignment or stock transfer was optional and he could prove his claim for non-levy of tax under C.S.T. Act by producing alternate evidence. There is nothing in that Section saying that Form F is intended by the Legislature to be the only method of discharging the burden that lies on the dealer. The furnishing declaration in Form F is not mandatory but is only enabling provision and it did not exclude other modes of discharging burden. Therefore, the dealer can discharge the burden which has been thrown upon him under Section 64, by other modes as well apart from submitting a declaration in Form F to the assessing authority. 3. However, the Tribunal while disposing of the assessee's appeal, at paragraph S.T.Rv.78/2005 -2- 20, has stated as under: “20. The appellant has not produced any documents prescribed under Section 6A of the CST Act to prove the stock transfer of goods from Kerala to other State before this Tribunal also. So, we feel that no purpose will be served if another opportunity is given to the appellant to produce the documents prescribed under section 6A of the CST Act to prove the stock transfer at this distance of time as the matter relates to the year 96-97 and also relying on the decision of the Hon'ble High Court of Kerala in ESAB India Limited's case cited by the State. Hence, the appeal filed against the CST assessment for the year 96-97 fails and the appeal is dismissed.” 4. We are not inclined to accept the view expressed by the Tribunal. 5. Our conclusion is also supported by the observations made by a Division Bench of this court in the case of Vijayamohini Mills v. State of Kerala (1989 (1) KLT 515). In the said decision, this court has stated as under: “In the light of the above clear provisions in the statute, we are unable to hold that furnishing of the declaration (F Forms), as enjoined by S.6A(1) of the C.S.T. Act, is in any way compulsive or mandatory. It is only permissive. The dealer can discharge the burden of proof cast on him under the first limb of S.6A(1) of the Act, either by filing the 'F' Forms or by adducing other evidence. S.6A(2) of the C.S.T. Act shows that production of Form 'F' is not conclusive proof that the inter-State transfers are otherwise by way of sale. So, we are of the view that filing of 'F' Forms is not mandatory or compulsory and non-compliance thereof cannot be visited with any penal or adverse consequences on the dealer. It is open to the dealer to discharge the burden of proof cast on him in any other manner in accordance with law.” 6. In the case of C.P.K. Trading Company v. Additional Sales Tax Officer, III Circle, Mattancherry and another {(1990) 76 STC 211} this court has stated as under: “Before concluding, we should stress one aspect. In cases where the dealer exercises his option to discharge the burden of proof S.T.Rv.78/2005 -3- cast on him, by adducing evidence without producing F forms, the important aspect to be borne in mind by the assessing authority is that the dealer is discharging the burden of proof cast on him to substantiate that the movement of the goods was occasioned not by reason of sale, but was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal outside the State. The burden of proof is not to the hilt. It is to be evaluated on probabilities. In evaluating the evidence adduced by the dealer, in this behalf, the assessing authority should focus his mind only on those aspects or facts which will be relevant to find, whether the movement of the goods was occasioned not by reason of sale, but otherwise. Only production of those documents or papers or materials relevant or germane to find that vital aspect, should be insisted.” 7. In view of the above, that portion of the order passed by the assessing authority in insisting upon the assessee to produce form 'F' declaration to support its claim for exemption in respect of branch transfers, is set aside. The assessee is permitted to produce such other evidence which is available to claim for exemption in respect of its branch transfers. The assessing authority shall keep in view what has been stated by us in our order, while examining the claim of the assessee and pass appropriate orders in accordance with law. With these observations, the revision petition is disposed of. Ordered accordingly. H.L.Dattu, Chief Justice. T.R. Ramachandran Nair, Judge. kav/dk