ASHOK LEYLAND LTD. v. STATE OF TAMIL NADU AND ANR

Citation: [2004] 1 S.C.R. 306

Court: Supreme Court of India

Bench: V.N. KHARE, S.B. SINHA, AR. LAKSHMANAN

Case summary

ASHOK LEYLAND LTD. v. STATE OF TAMIL NADU AND ANR.pdf

Judgment text

,. . ASHOK LEYLAND LTD. v. STATE OF TAMIL NADU AND ANR. JANUARY 7, 2004 [V. N. KHARE, CJ. , S. B. SINHA AND A. R. LAKSHMANAN, JJ. ] 1' Central Sales Tax Act, 1956-Section 6A(2)-lnter-State Sale-legal fiction created-Effect of-Acceptance of Form F filled by the assessee- Held, legal . fiction operates-Order accepting Form F becomes final and cannot be reopened unless found illegal/void/voidable-Tamil Nadu General Sales Tax Act, 1959-Section 16. Code ofCivil Procedure, 1908-Section 11-Res Judicata-Applicability of-Held, would not apply where jurisdictional question wrongly decided. Interpretation ofStatute-Must be interpreted having regard to the /ext ' and context-Stall/le must be read in its entirety-General and special "iprovision-Special provision prevails over general provision-Central Sales Tax Act, 19. 56-Tamil Nadu Sales Tax Act, 1959. Words and Phrases-legal Fiction-Meaning of The appellants were manufacturers of commercial vehicles.

They were registered under the Tamil Nadu General Sales Tax Act, 1959 and also the Central Sales Tax Act, 1956. They had several regional sales offices in States other than Tamil Nadu. The regional sales offices were registered under the sales tax law governing the concerned State. The appellants transferred vehicles to the regional sales offices for marketing the products under the cover of stock transfer invoices and local sales tax was collected and paid by the regional offices on such vehicles. The appellants filled Form Fin terms of Section 6 A of the Central Sales Tax Act, 1956 in Tamil Nadu stating that the transactions constituted transfer of stock and there was no inter-State sale. After enquiry, the assessing officer accepted Form filed by the appellants holding that that there was only a stock transfer to the depots of the appellants situated in other States and no inter-State ~ "' sale had taken place.

The assessing authorities, thereafter, sought to review the order accepting Form F. The appellants contested the reopening of ASHOK LEYLAND LTD. r. STATE 307 • i the assessment on the ground that it cannot be reopened as under the provisions of Section 6 A (2) of the Central Sales Tax Act, 1956, the assessment attained finality on acceptance of Form F. However, the assessing authority reopened proceedings, held that the transfers made by the appellants were inter-State sales and also imposed penalty on the appellants. The appellants filed writ petition before the High Court, which was , '( dismissed. On appeal to the Court, a two-Judge Bench of the Court held that it was permissible for the assessing authority to reopen a proceeding even after acceptance of Form F. (As/wk Leyland v. Union ofIndia and Ors. , 1199719sec10).

Pursuant to the judgment of the Court, an order of reassessment was passed imposing tax on the appellants on the sales made by the regional sales offices of the appellants. The appellants filed appeal to the Court and contended that when an order is passed by the assessing authority after holding an enquiry accepting the Form F declaration made by the assessee, the same could ' I ...

I course of inter-State trade or commerce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provision of sub-section (2), in the State from which the movement of the goods commenced: Provided that, in the case of a sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods and being also a sale which does not fall within sub-section (2) of section 6, the tax shall be levied and collected- (a) where such subsequent sale has been effected by a registered dealer, in the State from which the registered dealer obtained or, as the case may be, could have obtained, the form prescribed for the purposes of clause (a) of sub-section (4) of section 8 in connection with the purchase of such goods; and (b) where such subsequent sale has been effected by an unregistered dealer in the State from which such subsequent sale has been effected.

(2) Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, re-assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess re-assess, collect and enforce payment of tax, including any interest or penalty, payable by a dealer under this Act as if the tax or interest or penalty payable by such a dealer under this Act is a tax or interest or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all . ) ... ,.

or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm of Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, rebates, penalties, charging or payment of interest, compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly.

Form 'F' which is relevant for the purpose of the case reads thus : "ORIGINAL THE CENTRAL SALES TAX (REGISTRATION AND TURNOVER) RULES, I957 FORM F [Form of declaration to be issued by the transferee] [See rule I2(5)] Serial No............................................................................. :... Name of the issuing State .................................................... Office of issue........................................................................ Date of issue........................................ ,................................. . Name and address of the person to whom issued along with his Registration Certificate No.................................................... Date from which registration is valid..................................... Seal of Issuing Authority To................................. (Transferor) Registration Certificate No.

of the Transferor...................................................................................................................... Certified that the goods transferred to me/us as per details below have been received and duly account for. Description of the goods sent.................................................. Quantity or weight.................................................................. . Value of the goods.......................................................................... . Number and date of invoice [or challan or any other documents under which goods were sent. ] Name of Railway Steamer or Ferry Station or Air Port or Post Office or Road Transport Company's Office from where the goods were despatched ............................................................................................. No.

and Date of Railway Receipt or Postal Receipt or Goods Receipt with trip sheet of lorry or any other documents indicating the means of transport........................... Date on which delivery was taken by the transferee............ The above statements are true to the best of my knowledge and l5elief. (Signature) (Name of the person signing the declaration) *(Status of the person signing the declaration in relation to the transferee) *(Status of the person signing the declaration in relation to the transferor) Date.......... *Strike out whichever is not applicable (Note-To be furnished to the assessing authority in accordance with the rules framed under section 13(4)(e). )" __.. Having noticed the relevant provisions of the statute, we may notice the following constitutional provisions: "245. Extent of laws made by Parliament and by the Legislatures of States. -(!

) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation 268. Duties levied by the Union but collected and appropriated by the States. -(! ) Such stamp duties and such duties of excise on medicinal and toilet preparations as are mentioned in the Union List shall be levied by the Government of India but shall be collected- (a) in the case where such duties are. leviable within any Union territory, by the Government of India, and (b) in other cases, by the States within which such duties are respectively leviable. (2) The proceeds in any financial year of any such duty leviable within any State shall not form part of the Consolidated Fund of India, but shall be assigned to that State. 269.

Taxes levied and collected by the Union but assigned to the States. -(I) Taxes on the sale or purchase of goods and taxes on the consignment of goods shall be levied and collected by the Government of India but shall be assigned and shall be deemed to have been assigned to the States on or after the Ist day of April, 1996 in the manner provided in clause (2). Explanation. -For the purposes of this clause,- (a) the expression "taxes on the sale or purchase of goods" shall mean taxes on sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce; (b) the expression "taxes on the consignment of goods" shall mean taxes on the consignment of goods (whether the consignment is to the person making it or to any other person), where such consignment r . takes place in the course of inter-State trade or commerce.

(2) The net proceeds in any financial year of any such tax, except in so far as those proceeds represent proceeds attributable to Union territories, shall not form part of the Consolidated Fund of India, but shall be assigned to the States within which that tax is leviable in that year, and shall be distributed among those States in accordance with such principles of distribution as may be formulated by Parliament by . ,.. law. (3) Parliament may by law formulate principles for determining when sale or purchase of, or consignment of, goods takes place in the course of. inter-State trade or commerce. " Article 286 as it stood prior to 6th Amendment Act, 1956 reads thus: "286. Restrictions as to imposition of tax on the sate or purchase of goods. - (I) No law of a State shall impose, or authorise imposition of a tax on the sale or purchase of goods where such sale or purchase takes place - 4-....

(a) outside the State; or (b) in the c:ourse of import of goods into, or export of goods out of, the territory of India. Explanation: For the purposes of sub-clause (a) a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the ,.. goods has by reason of such sale or purchase passed in another State. (2) Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorize the imposition of, a tax on sale or purchase of any goods where such sale or purchase takes place in the course of inter-State trade or commerce: Provided that the President may by order direct that any tax on the .

,,sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of this Constitution shall, notwithstanding that the imposition of such I '1 tax is contrary to the provisions of this clause continue to be levied until thirty first day of March, 1951. (3) No law made by the Legislature of a State imposing, or authorizing the imposition of a tax on the sale or purchase of any such goods as have been declared by Par! iament by law to be essential for life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent. " ... ,. > Paragraph 16 of Second Report of the Law Commission of India states: "16.

The question whether on the analogy of the principles adopted in connection with sales or purchase in the source of import or export, a sale effected by the transfer of documents during the movement of goods from one State to another should be regarded as an inter-State sale or purchase has received our careful consideration. We are of the view that such sales or purchases should be regarded as inter-State transactions. It was suggested that ifthe rate of inter-State tax happened to be lower than the rate of tax levied by the State on intra-State transaction the adoption of this principle might lead to attempts bJ dealers to evade the higher tax of the State by giving intra-State • .. > transactions the appearance of inter-State transactions by the creation of fictitious records showing the movement of the goods from one State into another.

We are not inclined to attach much importance to this suggestion as in any case the sale or purchase will not escape taxation altogether and it is unlikely that dealers would resort to such ~ attempts in order to save the difference between the inter-State and the intra-State tax. Moreover, if this principle is not applied considerable administrative and other difficulties will arise. We are, therefore, of the view that sales and purchases effected by a transfer ~ of documents during th·e movements of goods from one State to another should be regarded as inter-State transactions. " ~ Thereafter the following Bill was introduced pursuant thereto: "In clause 2, it is proposed to add a new entry 92A in the Union List placing taxes on inter-State saies and purchases within the exclusive legislative and executive power of the Union, and to make entry 54 ... , of the State List "subject to the provisions" of this new entry.

In clause 3, it is proposed to add these taxes to the list given in clause (1) of article 269, so that, although they will be levied and collected r , in accordance with an Act of Parliament, they will not form part of the Consolidated Fund of India, but will accrue to the States themselves in accordance with such principles of distribution as may be formulated by Parliament by Jaw. A further provision is proposed in article 269 expressly empowering Parliament to formulate by law principles for determining when a sale or purchase of goods takes place in the course of inter-State trade or commerce. It is proposed in clause 4 to omit from clause {l) of article 286 the 'r explanation which has given rise to a great deal of legal controversy and practical difficulty. In view of the centralization of inter-State sales tax proposed in clause 2 of this Bill, clause (2) of article 286 in its present form will cease to be appropriate.

In its place it is proposed to insert a provision empowering Parliament to formulate principles for determining when a sale or purchase of goods takes place (a) outside a State, or (b) in the course of import of the goods into the territory of India, or (c) in the course of export of the goods out of the territory of India. It is further proposed to replace clause (3) of article 286 by a new clause on the lines recommended by the Taxation Enquiry ..... Commission. Under this revised clause Parliament will have the power to declare by law the goods which are of special importance in inter- State trade or commerce and also to specify the restrictions and conditions to which any State law (whether made before or after the Parliamentary Jaw) will be subject in regard to the system of levy, rates and other incidents of the tax on the sales or purchase of those goods. " Pursuant to or in furtherance of the Report of the Law Commission of .... India, Article 286 was amended.

Article 286(3) now reads as under: "(3) Any Jaw of a State shall, in so far as it imposes, or authorises the imposition of,- u (a) a tax on the sale or purchase of goods declared by Parliament by Jaw tu be of special importance in inter-State trade or commerce; or Y" (b) a tax on the sale or purchase of goods, being a tax of the nature referred to in sub-clause (b), sub-clause (c) or sub-clause (d) of clause (29A) of Article 366, be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify. " The history of legislation as also constitutional amendments in relation to inter-State movement of goods has been noticed in State of A. P. etc. v. National Thermal Power Corpn. Ltd. and Ors. etc. , (2002) 5 SCC 203 and as such it may not be necessary to reiterate the same once over again. ... ,.

SECTION 6A OF THE CENTRAL ACT: Prior to amendment of Section 6A of the Central Act, filing of Form F was optional. The dealer was, thus, entitled either to file such form or not to file the same. Only because such form is not filed, the same would not mean that the dealer was prohibited from raising a plea that no stock of transfer from his Head Office to Regional Offices or Regional Sales Offices has taken place. It was entitled to plead that by reason of such transactions which are intra-organisation, sale was not occasioned by movement of goods. The question which was required to be posed and answered by the assessing authority was, thus, required to be confined only to the fact as to whether any sale has occasioned by movement of goods or not. In other words, an exception ..

) had been made to the concept of inter-State sale by invoking the provisions of the Central Act; when such movement of goods was by way of transfer of stock; in terms whereof no tax under the Central Act was payable. Indisputably determination of such a question at the hands of the assessing authority was required for arriving at a finding of fact as to whether the Central Sales Tax or the local sales tax would become payable. The States, where manufacturing of goods takes place in case involving such nature of transaction, presumably would like to invoke the provisions of the Central Sales Tax as in terms of Article 270 of the Constitution of India despite the fact . that the Central Sales Tax is payable to the Central Government, the .... amount is invariably passed on to the State concerned.

On the other hand, the purchaser when it is a public sector undertaking, would like to see that the purchase and sale takes place within the State so as to entitle the concerned State to collect the local sales tax, a rate therefor would normally be higher. There, thus, exists conflict in interest of the States particularly having regard to the financial crunches faced by them. Having regard to the Statement of Objects and Reasons of the Central 'I Sales Tax Act vis-a-vis the recommendations made by the Law Commission, as referred to hereinbefore, it would appear that the Parliament with a view to bring in expediency in such a matter so that the dispute can be determined as expeditiously as possible amended Section 6A.

Section 6 of the Act provides for liability to tax on inter-State sales in terms whereof every dealer is liable to pay tax thereunder on sales effected by him in the course of inter-State trade or commerce subject to the exception contained in the proviso appended thereto. Such tax would be leviable notwithstanding the fact that no tax is leviable either on seller or the purchaser under the State tax laws of the appropriate State if that sale had taken place inside the State. . ,.. { The liability to tax on inter-State sale as contained in Section 6 is expressly made subject to the other provisions contained in the Act. Sub- Section (2) of Section 9, on the other hand, which is a procedural provision starts with the words "subject to the other provisions of this Act and the rules made thereunder". Section 6A provides for exception as regard the burden of proof in the event a claim is made that transfer of goods had taken place otherwise than by way of sale.

Indisputably, the burden would be on the dealer to show that the movement of goods had occasioned not by reason of any transaction involving sale of goods but by reason of transfer of such goods to any other place of his business or to his agent or principal, as the case may be. For the purpose of discharge of such burden of proof, the dealer is required to furnish to the assessing authority within the prescribed time a declaration duly filled and signed by the principal officer of the other place of business or his agent or principal. Such declaration would contain the prescribed particulars in the prescribed form obtained from the prescribed authority. Along with such declaration, the dealer is required to furnish the evidence of such dispatch of goods by reason of Act 20 of 2002. In the event, if it fails to furnish such declaration, by reason of legal fiction, such movement of goods would be deemed for all purposes of the said Act to have occasioned as a result of sale.

Such declaration indisputably is to be filed in Form F. The said form is to be filled in triplicate. The prescribed authority of the transferee State supplies the said form. The original of the said form is to be filed with the transferor State and the duplicate thereof is to be filed before the authorities of the transferee State whereas the counterfoil is to be preserved by the person where the ag. ent or principal of the place of business of the company is situated. When the dealer furnishes the original of Form F to its assessing authority, an enquiry is required to be held. Such enquiry is held by the assessing authority himself. He may pass an order on such declaration before the asse. ssment or along with the assessment. Once an order in terms of Sub- Section 2 of Section 6A of Central Act is passed, the transactions involved • ·-f therein would go out of the purview of the Central Act.

In other words, in relation to such transactions, a finding is arrived at that they are not subjected to the provisions of the Central Sales Tax. It is not in dispute thereunder no appeal is provided thereagainst. In Mis. Chunni Lal Parshadi Lal v. Commissioner of Sales Tax, UP, [1986] 2 sec so1. "23. It means that a sale of any of the goods specified in sub-section (I) to a registered dealer who has purchased them or to any unregistered dealer, shall for the purpose of this section, be deemed to be a sale to the consumer unless the purchasing dealer purchases the said goods for resale in the s. ame condition. It merely strengthens the provisions of sub-section (2) of Section 3-AA i. e. unless the dealer proves otherwise, every sale shall, for the purpose of subsection (1 ), be presumed to be to a consumer. The combined effect of sub-sections (I), (2) and (3), of Section 3-AA of the Act is that tax would be payable if the goods in question i. e.

cotton yarn, in this case, are sold to a dealer for consumption. Unless the dealer proves otherwise every sale by a dealer shall for the purpose of sub-section (I) be presumed to be a sale to a consumer. A sale of any of the goods mentioned in sub-section (I) to a registered dealer who does not purchase them for resale in the same condition, without processing or sale to unregistered dealer shall be deemed to be a sale to the consumer. Therefore, a registered dealer has to prove that a sale to another registered dealer or an unregistered dealer is not for consumption. In order to facilitate the working of the Act, by Rule 12-A a method of proving has been provided that the sale is not sale to the consumer. The reading of the rule along with relevant provisions of the Act leads to the conclusion that Rule 12-A method,fUrnishing of certificate in the form and with the particulars-is one of the methods of proving that sale by a registered dealer is not for consumption.

Neither the rule nor the provision of the section suggests that this is the only method. If a dealer can prove by any other way than the way contemplated by Rule 12-A then he is not so precluded. For the rule to say otherwise would be exceeding the provision of the section. The purpose for the making of the rule would however, be frustrated if after the dealer proves in the manner indicated in Rule 12-A he has to prove again how the purchasing dealer has dealt with the goods after he obtains the certificate from a registered dealer. That would make the working of the Act aild Rule unworkable. 'r' • 24. There is no dispute that in this case certificates as mentioned in Rule 12-A were furnished. 25. The questions involved in this case are whether by famishing certificate in Form Ill-A . and the details of such certificate given in Form IV, the selling dealer got exemption and Rule 12-A created an irrebuttable presumption i. e.

that no further evidence is required in this matter to prove that the goods were sold to a dealer for resale in the same condition and not to be consumed by the purchasing dealer. " By reason of Sub-Section (2) of Section 6A, a legal fiction has been created for the purpose of the said Act to the effect that transaction has occasioned otherwise than as a result of sale. On an analysis of the aforementioned provisions, therefore, the following propositions of law emerge: (i) The initial burden of proof is on the dealer to show that the movement has occasioned by reason of transfer of such goods which is otherwise than by reason of sale. The assessee may file a declaration. On a declaration so filed an inquiry is to be made by the assessing authority for the purpose of passing an order on arriving at a satisfaction that movement of goods has occasioned otherwise than as a result of sale. (ii) Whenever such an order is passed, a legal fiction is created.

Legal fiction, as is well-known, must be given its full effect. In the rules of evidence, there exist several presumptions. These presumptions may be rebuttable or irrebuttable. lrrebuttable presumptions are referred to as conclusive presumptions as they stand as conclusive proof of certain facts and are open to challenge only on very meagre grounds. Under the Indian Evidence Act, Sections 41, 112 and 133 deal with conclusive presumptions. Even in other enactments, like the Indian Companies Act, 1956, such provisions exist. In the case at hand it is necessary to determine whether Section 6A of the Central Sales Tax Act sets up a conclusive presumption. "Presumptions may be looked upon as the bats upon the provisions of the concerned State sales tax enactment by virtue of Section 9(2). " We do not think that the aforesaid view is correct.

In Re Eric Holmes Ltd, [I 965] 2 All ER 333, it was held, "that the giving of the certificate by the Registrar is conclusive that the document creating the charge was properly registered, even if in fact it was not properly registered. " -•L A discussion may also ensue as to whether a conclusive presumption is one of substantive or of procedural law. This was discussed in Izhar Ahmad Khan (supra) and was held to be part of the latter and not the former as it found place in the Indian Evidence Act (among other reasons). The decision runs as follows: "It was not correct to say that r. 3 of Sch III of the Citizenship Rules, 'I 1956, which made it obligatory on the authority to infer the acquisition of foreign citizenship from the fact of obtaining a passport from foreign country was not a rule of evidence but a rule of substantive \· . law. Like the rules of rebuttable presumption, which was undoubtedly a rule of evidence.

The function of an irrebuttable presumption was also to help the judicial mind in appreciatin. g the existence of facts with this difference that while the former was open to rebuttal, the latter was placed beyond rebuttal. So considered a rule of irrebuttable presumption could not be said to fall to fall outside the law ofevidence. That such a rule might in some cases lead to hardship and injustice was not a relevant consideration in judging its constitutional validity. The real test whether a rule of irrebuttable presumption was one of evidence was inherent relevancy. If the fact from the proof of which the presumption was required to be drawn was inherently relevant in proving it, the rule was one of evidence, no matter whether the presumption prescribed was rebuttable or irrebuttable. The expression 'rules of evidence' in Section 9(2) must be construed in the light of its legislative history.

Ever since the passing of the Evidence Act a conclusive presumption has been a part of the law of evidence. It is well settled that the scope of power to legislate on a topic had to be determined by the denotation of that topic obtaining in legislative practice. " Howc:ver, in the minority opinion it was observed, · "A rule ofconclusive presumption made with a view to affect specified substantive right was a rule of substantive law and did not cease to be so because it rested on a fact which was relevant to it. The test was not one of relevancy but whether it was intended to affect a specified substantive right or provide a method of proof. " The said principle has been reiterated by this Court in M Venugopal v. Divisional Manager, life Insurance Corporation of India, Machilipatnam, A. P. and Anr. , [1994] 2 sec 323. In the case at hand, a statutory authority that had jurisdiction to pass such an order has passed the order.

In addition there is no provision for appeal, which goes to show that this is part of the substantive law and not procedural law. This order is conclusive for all purposes, as the above two stated elements clearly go out to show. No appeal has l-\ ,y been provided for depicting the will of the legislature to make the • order of such authority final. In The Municipal Board, Hapur v. Raghuvendra Kripal and Ors. , AIR (1966) SC. 693 this Court stated: "... The provision making the notification conclusive evidence of the proper imposition of the tax is conceived in the best interest of ,. compliance of the provisions of the Boards and not to facilitate their breach. It cannot, therefore, be said that there is excessive delegation. " In State of Madras v. Mis. Radio and Electricals Ltd. , (1966] Supp. SCR 198, it has been held that satisfaction once reached in absence of any provision, review of such an order is not permissible.

In Balabhagas Hulaschand, (supra) (1976] 2 SCC 44, this Court has given an example. "Case No. II-A who is a dealer in State X agrees to sell goods to but he books the goods from State X to State Y in his own name and his agent in State Y receives the goods on behalf of A. Thereafter the ). )I goods are delivered to B in State Y and if B accepts them a sale takes place. It will be seen that in this case the movement of goods is neither in pursuance of the agreement to sell nor is the movement occasioned by the sale. The seller himself takes the goods to State Y and sells the goods there. This is, therefore, purely an internal sale which takes place in State Y and falls beyond the purview of Section 3(a) of the Central Sales Tax Act not being an inter-State sale. Jn C. P. K. Trading Co. v. Additional Sales Tax Officer, If/ Circle Mattancheny, (1990) 76 STC 211, the law is stated in the following terms: . J. "...

A plain reading of section 6A(2) of the Central Sales Tax Act points out that in cases where the dealer exercises the option of fur11ishing 'the declaration (F forms), the only further requirement is. that the assessing authority should be satisfied, after making such enquiry, as he may deem necessary, that the particulars contained in the declaration furnished by the dealer are "true". The scope or frontiers of enquiry, by the assessing authority under Section 6A(2) of the ' ( • The purport and object of Section 6A of this Act need not detain us for long as the same has been considered at some details recently in 20th Century Finance Corpn. Ltd. and Anr. v. State of Maharashtra, [2000] 6 SCC 12 stating: "While examining the power of State Legislatures under Entry 54 of List II in the earlier part of this judgment, we have noticed that the situs of the sale or purchase is wholly immaterial as regards the inter- State trade or commerce, as held in Bengal Immunity Co. Ltd. case ...

AIR (1955) SC 661 : [1955] 2 SCR 603. Further, the State Legislature cannot by law, treat sales outside the State and sales in the course of import as "sales within the State" by fixing the situs of sales within its State in the definition of sale, as it is within the exclusive· domain of the appropriate legislature, i. e. , Parliament to fix the location of sale by creating legal fiction or otherwise. " ' In Mahant Dharam Das (supra), it has been held that the object of the . ,. , Act is to get rid of protracted litigation. The same is also required to be borne in mind while interpreting the relevant provisions of the Central and the State , Acts.

• "' There ·cannot be any doubt or dispute that while defining sale, the situs of sale can be fixed by the Parliament which having regard to Article 286 is within its exclusive domain and in the context of Article 269(3) having regard to the following factors: (i) Place where agreement of sale is concluded; (ii) Passing of property in the goods; (iii) Where the parties to the contract reside; and (iv) Goods are located or manufactured. Once the situs of sale either by way of legal fiction or otherwise is detennined, the State Legislature will be denuded of its power to fix another situs having regard to the fact that the Parliament alone has the exclusive jurisdiction therefor. A sale may have several elements and all of them need not necessarily take place in one State and in that view of the matter a presumption had to be provided for by a deeming provision as a logical corollary of the principles laid down by a law of Parliament. ;.

y It has not been disputed before us that all the requisite particulars are to be stated in Form F. Once a determination is made that such statements are correct, the curtain is drawn keeping in view the expression "thereupon". The said word is of great significance and must be given its full effect. In Words and Phrases, Permanent Edition, Volume 41A, 'thereupon' is defined as: "Thereupon" has at least two meanings and may mean either immediately or without delay or lapse of time. It has been defined as p " meaning upon this or that and is used for the purpose of referring to a cause or condition precedent. It is also frequently used to denote following or consequence of preceding events and when considered in statutory interpretation it is often construed to refer to a succession of events in the order or sequence of their performance rather than as an adverb of time. State ex rel. Warnick v. Wilson, 178 P. 2d 277, 282, 162 Kan. 507.

" 1' The expression "For the purpose of this Act", unless the context otherwise requires would mean "all the purposes" thereof. In H. L. Sud, Income Tax Officer, Companies Circle 1(1), Bombay v. [2004] I S. C. R. >t-- Ta/a Engineering and locomotive Co. lid.. , AIR (1969) SC 319 at 319, this .. Court held: "The c:xpression "for all purposes", used in S. 43 only indicates that when an appointment is made for a particular assessment year it is stood for all purposes as far as that assessment is concerned i. e. , for all purposes for imposing tax liability, determining the quantum of the liability and for recovering it. The expression does not extend the liability to any other assessment excepting the liability for the assessment year for which the appointment is made. " The exj>ression "for the purpose of the said Act" must also be given effect to. The same would ordinarily mean "for the purpose ofall the provisions of the said Act". In M. K. Kochu Devassy v. Slale ofKera/a etc.

, [1979] 2 SCC 117, it is stated: 13. We find ourselves wholly unable to accept any of the contentions. The terms of Section 2 of the 1947 Act as substituted by Section 3 of the Kerala Act are absolutely clear and unambiguous and when they lay down that the expression "public servant" shall have a particular meaning for the purposes of the Act, that meaning must be given to the expression wherever it occurs in the Act. "For the purposes of the Act" surely means for the purposes of all and not only some of the provisions of the Act. If the intention was to limit the applicability of the definition of the expression "public servant" as contended, the language sed would not have been "for the purposes of the Act" but something like "for the purposes of the Act insofar as they relate to the offences under Sections 161 to 165A of the Indian Penal Code".

In Shrishl Dhawan (supra), the law is stated in the following terms: "Thus a tenant cannot wait for the entire period of lease and then raise objection to execution on fraud or collusion unless he is able to establish that it was not known to him and he came to know of it, for the first time only at the time of execution. In other words the Controller shall not be justified in entertaining an objection in execution unless the tenant establishes, affinnatively, that he was not aware of fraud before expiry of the period of lease. To the following ' extent, therefore, the law on procedural aspect should be taken as settled. (I) Any objection to the validity of sanction should be raised prior to exp. iry of the lease. (2) The objection should be made immediately on becoming aware of fraud, collusion etc. (3) A tenant may be permitted to raise objection after expiry of lease in exceptional circumstances only. (4) Burden to prove fraud or collusion is on the person alleging it.

" It was further observed : "... An action is mindless when it is thoughtless or without any care or caution. In law it is passing of an order without any regard to the provision of law. If the section requires the authority to pass an order on inquiry or on being satisfied of existence or non-existence of a fact then the duty cast is higher and an order which is passed without due regard to duty to investigate then the order may be mindless... " Furthermore, the expression 'subject to' must be given effect to. In Black's Law Dictionary, Fifth Edition at page 1278 the expression "Subject to" has been defined as under : "Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided, answerable for. Homan v. Employers Reinsurance Corp. , 345 Mo. 650, 136 S. W. 2d 289, 302" The word "Determination" must also be given its full effect to, which pre-supposes application ofmind and expression ofthe conclusion.

It connotes the official determination and not a mere opinion of finding. In Law Lexicon by P. Ramanatha Aiyar, Second Edition, it is stated: · "Determination or order. The expression "determination" signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The expression "order" must have also a similar meaning, except that it need not operate to end the dispute, Determination or order must be judicial or quasi-judicial. Jaswant Sugar Mills v. Lakshmi Chand, AIR (1963) SC 677, 680. [Constitution of India Art. 136]" In Black's Law Dictionary, 6th Edition, it is stated: "A "determination" is a "final judgment" for purposes of appeal when the trial court has completed its adjudication of the rights of the parties in the action. Thomas Van Dyken Joint Venture v. Van Dyken, 90 Wis. 236, 279 N. W. 2d 459, 463.

" It is not in dispute that the principles for determination as to what would cause a inter-state sale or intra-state sale is to be laid down in terms ofthe provisions ofa Parliamentary Act having regard to the express provisions contained in Clause (3) of Article 269 and Clause (3) of Article 286 of the Constitution. What principles can be deduced by reason of such a legal fiction has been stated by this Court in Consolidated Coffee Ltd (supra) in the following terms: "A 'principle' means a general guiding rule, and does not include specific directions, which vary according to the subject-matter per Shearman, J. , in M'Creagh v. Frearson, (1922) WN 37, 38. '<( • Similarly in WORDS AND PHRASES, Permanent Edition, Vol. 33- A at page 327 it is explained that "principle means a general law or rule adopted or professed as a guide to action.

"In other words, as opposed to any specific direction governing any particular or specific instance, transaction or situation a principle would be a guiding rule applicable generally to cases or class of cases. Looked at from this angli: it will be clear that sub-section (3) of Section 5 formulates a principle inasmuch as it lays down a general guiding rule applicable to all penultimate sales that satisfy the two conditions specified therein and not any specific direction governing any particular or specific transaction of a penultimate sale. In other words the content of the provision shows that it lays down a principle. " It was opined : "Two things become clear from this Statement; first, Mohd.

Serajuddin decision (1975) Supp SCR 169 : 36 STC 136 : [1975) 2 SCC 47 : (1975) SCC (Tax) 269 is specifically refemd to as necessitating the amendment and secondly, penultimate sales made by small and r-f medium scale manufacturers to an export canalising agency or private export house to enable the latter to export those goods in compliance with existing contracts or orders are regarded as inextricably connected with the export of the goods and hence, earmarked for conferal of the benefit of the exemption. But here again,_ 'existing contract' with whom is not clarified. In other words, on this crucial point the Statement is silent and does not throw light on whether the existing contract should be with a foreign buyer or will include any agreement -r with a local party containing a covenant to export.

Therefore, the question wiII again depend upon proper construction and as we have said above, in the matter of construction the two aspects as discussed earlier show that by necessary implication 'the agreement' spoken of by Section 5(3) refers to the agreement with a foreign buyer. " In terms of Clause (3) of Article 269, inter-state sale is contrasted from local sale. An order passed by the statutory authority who has jurisdiction therefor, the same would amount to a part of substantive and no! procedural law. In addition to this there is no provision for appeal. Thus, it is only in the limited i t' cases of fraud, mis-representation etc. that reassessment can be directed and not if there had been a mere error of judgment. If it is not an inter"State sale provided through a legal fiction, then it amounts to transfer of stock and this is a finding which has been arrived at by a statutory authority wherefor there does not exist any provision for appeal.

Therefore, it cannot be reopened on the premise that there was a mere error of judgment or change in opinion. Once it is held that such determination of an issue having regard to y legal fiction created in terms of Sub-Section (2) of Section 6A is conclusive, it must a fortiorari follow that ,the same is binding. The particulars required to be furnished in Form F clearly manifest that the proof required is as to whether the goods were factually transferred to the assessee himself or his branch office or his agent and not to any third party. Any other enquiry is beyond the realm of the assessing authority. ''1 It is true that this Court in Ashok Leyland (supra) upon consideration of the matter holding that no statutory conclusiveness had been attached by reason of a legal fiction in terms of Sub-Section (2) of Section 6A. This Court opined: "After all Section 6A is also one of the provisions of this Act.

There is no reason to elevate it to a higher status than the rest of the provisions~'. With utmost respect, therein the Court did. not take into consideration that the provisions ofSection 6A having been provided by way of exclusionary clause subjec:t to the satisfaction ofthe conditions precedent contained therein, T and, thus, the same stand at an elevated stage over charging Section 6 of the Act. The assessing authority while passing an order is required to take into consideration the jurisdictional fact. Once it is found, having been conferred with plenary power to determine its own jurisdiction, that he did not have any jurisdiction under the Act, the opinion of the assessing authority attains finality. What would be a jurisdictional fact has been noticed by this Comt in Shrisht Dhawan (supra) in the following terms: "19...

A Jurisdictional fact is one on existence or non-existence of· which depends assumption or refusal to assume jurisdiction by a court, tribunal or an authority. In Back's Legal Dictionary it is explained as a fact which must exist before a court can properly .. t assume jurisdiction of a particular case. Mistake of fact in relation to jurisdiction is an error of jurisdictional fact. No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated. Error ofjurisdictional fact renders the order ultra vires and bad... " In South India Corporation (P) ltd v. Secretary, Board ofRevenue. , AIR (196~) SC 207, this Court has held that special provisions shall prevail "' over the general provisions.

It is further trite that an administrative authority or a quasi-judicial authority while adj'udicating upon a lis is obligated to pose and answer a right question so as to enable it to arrive at a conclusion as to whether he has jurisdiction in the matter or not. By reason of a legal fiction which becomes attracted in terms of determination made thereunder, the provisions of the Central Act shall stand excluded. In A. V. Fernandez v. The State ofKera/a, 8 STC 561 at 574: (1957) I ASl-IOK LEYLAND LTD. v. STATE [S. B. SINHA• . I. ] 351 SCR 837, this Court observed: "There is a broad distinction between the provisions contained in the statute in regard to the exemptions of tax or refund or rebate of tax on the one hand and in regard tp the non-liability to tax or nonimposition oftax on the other.

In the former case, but for the provisions as regards the exemptions or refund or rebate of tax, the sales or purchases would have to be included in the gross turnover of the dealer because they are prima facie liable to tax and the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on which the tax can be imposed. In the latter case, the sales or purchases are exempted from taxation altogether. The Legislature cannot enact a law imposing or authorising the imposition of a tax thereupon and they are not liable to any such imposition of tax. If they are thus not liable to tax, no tax can be levied or imposed on them and they do not come within the purview of the Act at all. The very fact of their non-liability to tax is sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied or imposed.

" In Sahney Steel (supra) whereupon reliance has placed by the assessing authority, a contention was raised that the registered office and the branch office were separately registered as dealers under the sales tax law and transaction effected by the branch office should not be identified with transactions effected by the registered office. Pathak, J. , as the learned Chief Justice then was, observed : "... We are unable to agree.

Even if, as in the present case, the buyer places an order with the branch office and the branch office communicates the terms and specifications of the orders to the registered office and the branch office itself is concerned with the sales despatching, billing and receiving of the sale price, the conclusion must be that the order placed by the buyer is an order placed with the Company and for the purpose of fulfilling that order the manufactured goods commence their journey from the registered office within the State of Andhra Pradesh to the branch office outside the State for delivery of the goods to the buyer... " The Court in the facts of that case held that the movement from the head office to the branch office was for the purpose of delivery to the branch office, thereafter to the buyer through the branch office. The branch office merely acted as a conduit through which the goods passed on their way to the buyer. It is, however, relevant to note that the Court noticed : "...

It would have been a different matter if the particular goods had been despatched by the registered office at Hyderabad to the branch office outside the State for sale in the open market and without referetice to any order placed by the buyer. In such a case if the T goods are purchased from the branch office, it is not a sale under which the goods commenced their movement from Hyderabad. It is a sale where the goods moved merely from the branch office to the buyer... " The purpose of verification ofthe declaration made in Form F, therefore, is as to whether the branch office acted merely as a conduit or the transaction took place independent to the agreement to sell entered into by and between the buyer and the registered office or the office of the company situated outside the State. The said decision therefore, does not run counter to our reading of the said provision. Furthermore, the question which has been raised before us had not been raised therein. -( .

We, therefore, are of the opinion that the observations made by this Court in As/10k Leyland (sup-a) to the effect that an order passed under Sub- Section (2) of Section 6A can be subject matter of reopening of a proceeding under Section 16 of the State Act was not correct. However, we may hasten to add that the same would not mean that even wherein such an order has been obtained by commission of fraud, collusion, misrepresentation or suppression of material facts or giving or furnishing false particulars, the order being vitiated in law would not come within the purview of the aforementioned principle. An order of assessment is albeit passed under the State Act. But once it is held that the concerned State Act as also the Central Act is not applicable, as a consequence whereof sales tax would be payable under anoiher State Act, it is doubtful as to whether the power to ~eopen the proceedings under the State Act or the Central Act would be attracted.

There does not exist any power in the statute to rectify a mistake. In that view of the matter, mere change in the opinion of the assessing authority or to have a relook at the matter would not confer any jurisdiction upon him to get the proceedings reopened. Discovery of a new material although may be a ground but that ASHOK LEYLAND LTD. v. STATE [S. B. SINHA•. I. ] 353 t . -J itself may riot be a ground for reopening the proceedings unless and until it· is found that by reason of such discovery, a jurisdictional error has been committed. In other words, when an order passed in terms of Sub-Section (2) of Section 6A is found to be illegal or void ab inilio or otherwise voidable, the assessing authority derives jurisdiction to direct reopening of the proceedings and not otherwise. In Shrisht Dhawan (supra) this Court has held: "20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct.

Michael Levi likes a fraudster to Milton's sorcerer, Comus who exulted in his ability to, 'wing me into the easy-hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words of by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury.

In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active tole of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of the fact with knowledge that it was false. In a leading English Case (Der! )' v. Peek, [1886-90] All ER I what constitutes fraud was described thus: (ARR ER p.

22 B-C): Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. " This aspect of the matter has been considered. recently by this Court in Roshan Deen v. Preeti Lal, AIR (2002) SC 33, Smt. Anita v. R. Rambilas, AIR (2003) AP 32, Ram Preeti Yadav v. UP. Board of High School and Intermediate Education and Ors. , (2003] 8 SCC 3I I and Ram Chandra Singh v. Savitri Devi and Ors. , (2003] 8 SCC 3I9. Suppression of a material document would also amount to a fraud on the Court. (See Gowrishankar and Anr. v. Joshi Amba Shankar Family Trust and Ors. , [I 996] 3 SCC 3I0 and S. P. Chengalvaraya Naidu (Dead) By LRs. v. Jagannath (Dead) by Lrs. and Ors. , [I 994] I SCC I. There is no law that only because no appeal is provided the order would not attain finality. (See Commissioner of Income Tax, Bombay v. Mis. Amritlal Bhogilal & Co. (1959] SCR 713.

RES-JUDICATA: The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like, estoppel, waiver or res judicata. This question has since been considered in Sri Ramnik Va/labhdas Madhvani and Ors. v. Taraben Pravinlal Madhvani, (2003) 9 SCALE 4 I2 wherein this Court observed in the following terms : "So far as the question of rate of interest is concerned, it may be "' noticed that the High Court itself found that the rate of interest shouId have been determined at 6%. The principles of res judicata which according to the High Court would operate in the case, in our opinion, is not applicable. Principles of res-judicata is a procedural provision. The same has no application where there is inherent lack ofjurisdiction.

In Chief Justice of A. P. and Anr. v. L. V. A. Dikshitulu and Ors etc. , AIR 1979 (SC) 193 : [1979] 2 SCC 34, the law is stated in the " following terms: "23. As against the above, Shri Yepa Sarathy appearing for the ASHOK LEYLAND LTD. " STATE [S. B. SINHA. J. ) 355 respective first respondent in C. A. 2826 of 1977, and in C. A. ' f 278 of 1978 submitted that when his client filed a writ petition (No. 58908 of 1976) under Article 226 of the Constitution in the High Court for impugning the order of his compulsory retirement passed by the Chief Justice, he had served, in accordance with Rule 5 of the Andhra Pradesh High Court (Original Side) Rule, notice on the Chief Justice and the Government Pleader, and, in consequence, at the preliminary hearing ofthe writ petition before .....

y the Division Bench, the Government, Pleader appeared on behalf of all the respondents including the Chief Justice, and raised a preliminary objection that the writ petition was not maintainable in view of Cl. 6 of the Andhra Pradesh Administrative Tribunal Order made by the President under Article 371-D which had taken away that jurisdiction of the High Court and vested the same in Administrative Tribunal. This objection was accepted by the High Court, and as a result, the writ petition was dismissed in limine. In these circumstances-proceeds the argument-the appellant is now precluded on principles of res judicata and estoppel from taking up the position, that the Tribunal's order is without jurisdiction.

But, when Shri Sarathi's attention was invited to the fact that no notice was actually served on the Chief Justice and that the Government Pleader who had raised this objection, had not been instructed by the Chief Justice or the High Court to put in appearance on their behalf, the counsel did not pursue this contention further. Moreover, this is a pure question of law depending upon the interpretation of A1ticle 371-D. If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering fi"om inherent lack ofjurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in the case. " . In Dwarka Prasad Agarwal (DJ By LRs. and Anr. v. B. D. Agarwal and Ors. , [2003] 6 SCC 230, it is stated: "It is now well-settled that an order passed by a court without jurisdiction is a nullity. Any order passed or action taken pursuant thereto or in fu1therance thereof would also be nullities.

In the instant case, as the High Court did not have any jurisdiction to record the compromise for the reasons stated hereinbefore and in particular as no writ was required to be issued having regard to the fact that public law remedy could not have been reso11ed to, the impugned orders must be held to be illegal and without jurisdiction and are liable to be set aside. AII orders and actions taken pursuant to or in furtherance thereof must also be declared wholly illegal and without jurisdiction and consequently are liable to be set aside. They are declared as such. " In a case where an ordinance promulgated by the President of India which had been rendered invalid by a judgment of the High Court, the question as to whether an enactment of the Parliament would be barred was negatived in a recent decision of this Court in Dharam Dutt and Ors. v. Union ofIndia and Ors. , (2003) (IO) SCALE 141.

Pointing out that the High Court did not consider the constitutional questions in the right perspective, this Court observed: "The doctrine of Separation of Powers and the constitutional convention of the three organs of the State, having regard and respect for each other, is enough answer to the plea raised on behalf of the petitioners founded on the doctrine of Separation of Powers. We cannot strike down a legislation which we have on an independent scrutiny held to be within the legislative competence of the enacting legislature merely because the legislature has re-enacted the same legal provisions into an Act which, ten years before, were incorporated in an ordinance and were found to be unconstitutional in an erroneous judgment of the High Court and before the error could be corrected in appeal the Ordinance itself lapsed.

" CONCLUSION: For the reasons stated hereinbefore, we are of the opinion that the Appellants would be entitled to move the High Court for ventilating their grievances. However, if the Central Government creates a new forum, it wouId be open to them to approach the same. We may now consider the fact of the connected matters: In W. P. (C) No. 195 of 1999 merely a show cause notice has been issued in relation to three assessment years beginning from 1989-1990. This writ petition covers the period 1989-1990 to 19. 95-1996. In relation to period 1990-1991, 1991-1992 and 1992-1993 reopening proceedings had been initiated. A fresh cause of action has arisen in relation to the other assessment years.

Having regard to the fact that the question as to whether the finding arrived at by the STAT would attract the exceptions carved out hereinbefore mainly would revolve round the question as to whether determination in terms of Sub-Section (2) of Section 6A of the Act has been obtained by playing fraud or suppression of record or not requires a detailed examination. Indisputably, the appellant/ writ petitioner would be entitled to move the ")' High Court in accordance with law. CIVIL APPEAL@ SLP (C) No. 5579 of 2001 The appellant herein had filed his application praying inter alia for the following reliefs: "(a)Grant Special Leave to Appeal against the final Judgment and Order dated I3. I1. 2000 passed in STA No. 459 of I999 by the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai. (b) Pass such other or further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case and in the interest of justice.

" In the said case, no order of reopening has been issued and as such it is not a case where we were required to determine a forum in the light of the order passed in Ashok Leyland (supra). C. A. No. 944 of 2001 The question as to whether the transaction in question constitute interstate sale or intra-state sale has been decided upto Tribunal. They have approached this Court without availing the statutory remedies provided for under the statutes. We, therefore, decline to exercise our discretion and direct that the parties may avail the remedies under the statute. In view of our aforementioned findings, the parties may approach the High Court. If necessary, the other States wherein the local sales tax had been deposited, may be impleaded as parties so that the lis may be determined in their presence.

However, in the event, in the meanwhile, any forum is created by any Parliamentary Act in terms whereof the inter se disputes between the pa1ties vis-a-vis the claim of the assessee may be determined, 'f-, 4 they may approach the said forum. CA No. 9~3 of 2001 . · The appellant herein manufactures explosives. It has its factory situated at Onnalwadi, Hosur, Dharmapuri District. It is registered under the Central Sales Tax Act. It filed return for the assessment year I986-87 under the Central Sales Tax Act, 1956 claiming exemption in respect of a sum of Rs. "f , 34,30,302. 73 representing transfer of goods to its branch at Dhanbad in the ... State of Bihar and a sum of Rs. 13,91,547. 18 relating to its branch at Nagpur in the State of Maharahstra. An inspection held by the Enforcement Wing of the respondent; certain documents were recovered from a perusal whereof it transpired that the goods were moved against the prior orders and as such they are not entitled to exemption.

The Department contended that it a Coal India Limited which had placed orders for supply of explosives to its various subsidiary companies in No11h India and its projects at Asansol, Dhanbad, Ranchi, Nagpur and Bilaspur at specified rates and in that view of the matter ~ the transactions constituted inter-State sales. According to the appellant, however, order placed by Mis Coal India Limited is not an order intending to purchase but merely a standing offer. The objection of the appellant was .. ( < overruled upto the appellate authority. The matter went up to the Tamil Nadu Sales Tax Tribunal, Coimbatore wherein it was held that the goods being unascertainable ones must be held to be general and standard goods and tailormade to the special requirements of any customers. It came to the conclusion that the transactions were only branch transfers and were not liable to sales tax.

It further held that the transactions having taken place outside the State of Tamil Nadu and the transactions having been treated as local sales in other States, the State of Tamil Nadu had no jurisdiction to impose tax in respect thereof. The Tribunal also accepted the declaration -. ,-made in terms of Section 6A. The State of Tamil Nadu being aggrieved and dissatisfied therewith filed Tax Revision Case and by reason ofthe impugned judgment dated 2. I2. I997 the judgment of the Tribunal was reversed. It, however, did not interfere with the order of the Tribunal as regard penalty. Questioning the said order, the appeal has been filed before us. Keeping in view the fact that although more than one Stare is involved, having regard to the facts and circumstances of the case, it is necessary that the question may be examined afresh by the High Court in the light of the decision of this y' Court.

In the writ petition, it will be open to the paities to implead the other States so that, if necessary, the matter may be heard out and disposed of in their presence. However, in the event another forum is created by a A Parliamentary Act, it will be open to the parties to approach the said forum. These appeals and writ petitions are disposed of with the aforementioned directions and observations. No costs. B. K. M. Appeals/Petitions disposed of. B