IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03.12.2009 Coram : THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR.JUSTICE M.M.SUNDRESH W.P.No.27445 of 2004 and WPMP No.33365 of 2004 The State of Tamilnadu rep. By The Deputy Commissioner (CT) Coimbatore Division, Coimbatore. Petitioner v. 1. Tvl.The Kumaran Mills Limited 1024, Avinashi Road Coimbatore. 2. The Secretary, The Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench) Coimbatore. Respondents Writ petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorari to call for the records on the files of the 2nd respondent pertaining to the order dated 30.07.2002 made in C.T.A.No.282 of 1996 and quash the same as illegal. For Petitioner :Mr.Haja Nazirudeen, Spl.G.P. For Respondents: Mr.K.R.Krishnan (R1) JUDGMENT (Judgment of the Court was delivered by M.M.SUNDRESH, J.) The revenue has filed the writ petition being aggrieved against the order of the Tribunal in Appeal No.282/96 dated 30.07.2002 relating to the assessment year 1992-93, by which the Tribunal has allowed the appeal filed by the assessee by holding that the transactions involved are consignment sales. 2. The brief facts of the case are as follows:- (i) An order of assessment was passed by the Assessing Officer dated https://hcservices.ecourts.gov.in/hcservices/ 27.01.1995 disallowing the turnover for a sum of Rs.98,53,396/- by treating the same as interstate sale. The Assessing Officer has passed the said order on the ground that for about four transactions, the assessee has received the same amount mentioned in the sale invoice. The Assessing Officer further held that the documents required under Rule 4(3)(a) of the CST (TN) Rules have not been produced. The further ground on which the Assessing Officer has rejected the case of the assessee is that the agreement entered into between the assessee and the agentS does not contain a clause for the return of the goods. (ii) Having aggrieved against the order passed by the Assessing Officer, the assessee preferred an appeal before the Appellate Assistant Commissioner, Commercial Tax, Coimbatore in appeal No.CST 26/95. The first appellate authority in and by his order dated 10.05.1996 has rejected the appeal filed by the assessee on the very same grounds upon which the Assessing Officer has disallowed the exemption sought for by the assessee. (iii) The assessee filed a further appeal before the Tribunal and the Tribunal in Appeal No.282/96 dated 30.07.2002 has allowed the appeal by holding that the records would clearly prove that the assessee has sent the goods to the other state agents and commissions have been paid. It was further held that the agents in the other States have paid the local sales tax in the other State. The Tribunal also held that Rule 4(3)(a) of the CST (TN) Rules are not mandatory and a mere fact that the assessee has received the amount mentioned in the sale invoice by itself cannot be a ground to hold that the transactions are interstate sales. The Tribunal has also held that the mere fact that the agreement does not contain a clause to the effect about the return of the unsold goods by itself cannot be a ground to hold that the transactions are not consignment sales. (iv) Aggrieved against that order of the Tribunal, the revenue has come up with the present writ petition. 3. We have heard the argument of the learned counsel on either side and perused the materials available on record. 4. The learned Special Government Pleader submitted that the assessee has not complied with the provisions contained in Rule 4(3)(a) of the CST (TN)Rules inasmuch as the documents sought for by the Assessing officer have not been produced. Further, in four transactions, the same amount mentioned in the sale invoice was received by the assessee. Moreover, there is no specific clause in the agreement entered into between the assessee being the dealer and the agents of the other State to the effect that the unsold goods would be returned to the assessee. Therefore, the aforesaid facts would indicate that the transactions are interstate sale and not consignment sale. https://hcservices.ecourts.gov.in/hcservices/ 5. A reading of the order passed by the Tribunal would show that the assessee has produced records to show that the goods have been sent to the other State Agents and commissions have been paid. The assessee also filed a declaration under Form F. It is not the case of the revenue that the information given under Form F is not true. It s also seen that the agents have paid the local tax in the other State and the goods were neither manufactured according to the specifications of a particular good nor they were meant for a particular customer. 6. The mere fact that the same amount mentioned in the sale invoice has been paid to the assessee by the agents by itself cannot be a ground to hold that the transactions are interstate sales. The assessee in the present case has produced all the material evidence to satisfy that the transactions were consignment sales. Non production of the records as required by the Assessing Officer cannot be a ground to draw adverse inference against the assessee. 7. In the Judgment reported in 1996 STC 98 in the case of A.Dhandapani vs. State of Tamilnadu, a Division Bench of this Court held that the requirements under Rule 4(3)(a) are not mandatory, but only directory. The Tribunal held that the assessee with the available records has clearly proved that the transactions are consignment sales from the assessee being the principal to the place of agents and the agents have received the goods in their own place. 8. The other contention raised by the learned Special Government Pleader is that there is no clause in the agreement for the return of the unsold goods and therefore, the transactions will have to be construed as interstate sale also will not hold good. The fact that there is no specific clause in the agreement to the effect that the unsold goods are liable to be sent back to the assessee cannot be a ground to hold that the transactions involved are interstate sales. There is no mandatory condition that the agreement entered into between the assessee and the agents should contain such a clause. The Tribunal has taken into consideration all the materials available on record and has given its finding. 9. Therefore, on consideration of the above said facts, we do not find any interference needs to be called for. Accordingly, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. rg https://hcservices.ecourts.gov.in/hcservices/ To 1. The Deputy Commissioner (CT) Coimbatore Division, Coimbatore 2. The Secretary, The Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench) Coimbatore. 1 cc to Mr.K.R. Krishnn, Advocate, Sr 66061 1 cc to pl. Government Pleader, (Taxes), Sr. 66146 W.P.No.27445 of 2004 KK (CO) kk 15/12 https://hcservices.ecourts.gov.in/hcservices/