- (1.) The assessee is on appeal as against the order of the Tribunal relating to the assessment year 1989-90, raising the following substantial questions of law : 1. Whether in facts and circumstances of the case and in law, the Tribunal ought to have held that the transaction represents inter state sales only and not local sales since the contract provided for movement of goods from Tamil Nadu to the work site of the buyer at Warora? 2. Whether in facts and circumstances of the case and in law, the Tribunal was justified in confirming the tax liability on the turnover of Rs. 2,37,646/- since the assessing authority had not given any reasons for imposing the tax liability on the aforesaid turnover and the turnover was also not considered by the Appellate Assistant Commissioner? It is seen from the narration of facts in the orders of the authorities below that the assessee herein effected sale to Vijayashree Colata Limited, Warora and claimed the sale as an inter-State sale. The Assessing Officer, however, viewed the sale as a local sale, on the ground that the purchaser had taken delivery inside the State; thus assessable under the provisions of the Tamil Nadu General Sales Tax Act.
(2.) Aggrieved by this, the assessee went on appeal before the Appellate Assistant Commissioner. Applying the decision The State of Mysore Vs. Guduthur Thimmappa and Son and another, 1967 19 STC 35 the First Appellate Authority held that the assessment was rightly made under the provisions of the Tamil Nadu General Sales Tax Act. The assessee went on further appeal before the Sales Tax Appellate Tribunal, which rejected the assessee's case, on the ground that the price was ex-godown; that the purchaser had taken delivery and moved the goods inter-State at its own cost. Thus, the sale was only a local sale. The Tribunal further pointed out that the goods were insured by the buyers themselves and the sellers were relieved of the liability after the delivery. Thus, applying the decision S.K. Shanmugavelu and Another Vs. State of Tamil Nadu, 1983 54 STC 12 the Tribunal rejected the assessee's case. Aggrieved by the said order, the assessee is on revision before this Court.
(3.) Learned counsel appearing for the assessee pointed out that even though there was no written agreement between the parties as to the terms of sale, yet, the invoice and the conduct of the parties reveal that the sale was an inter-State sale and the movement and the sale were intimately linked to each other, that the same could not be separated for the purpose of treating the sale as a local sale. Admitting the fact that the buyers had insured the goods, the payment being an ex-godown price and the movement of goods by the buyer, learned counsel pointed out that these were matters of contract, which, in any event, cannot be a decisive factor on the character of the sale. Given the fact that the parties had contemplated movement of goods pursuant to the contract of sale, the transactions were liable to be assessed only under the Central Sales Tax Act. In this regard, he placed reliance on the decisions Union of India Vs. Khosla & Co. Ltd., 1979 43 STC 457 , Vinay Cotton Waste Company Vs. The State of Tamil Nadu, 1986 63 STC 391 and Co-operative Sugars (Chittur) Ltd. Vs. State of Tamil Nadu, 1993 90 STC 1 and submitted that the decision relied on by the First Appellate Authority The State of Mysore Vs. Guduthur Thimmappa and Son and another, 1967 19 STC 35 is a distinguishable one and that the issues raised therein were totally different.;