- (1.) The respondent, Kerala State Small Industries Development and Employment Corporation Ltd., imported cement into India under an import licence. The ships were berthed at Tuticorin port in Tamil Nadu and the cement unloaded at the said port. The respondent had opened its branch office at Tuticorin to undertake the delivery of cement at Tuticorin port and to further transport it to various parties including those in the State of Kerala. It, however, did not make any payment of central sales tax to the State of Tamil Nadu. In respect of the cement directly despatched from Tamil Nadu to the customers in Kerala, the respondent took the stand that it had no liability to pay the sales tax in the State of Tamil Nadu as the goods were imported with the intention to deliver the same to customers and sub-allottees at Kerala. The Enforcement Wing Officers of the Sales Tax Department of the State of Tamil Nadu conducted investigation, seized the record and on the basis thereof came to the conclusion that direct sales were made by the respondent-Corporation from the State of Tamil Nadu to the State of Kerala and the said sales were camouflaged as sales from Kerala depots with a view to avoid payment of inter-State sales tax by showing that the cement was despatched to the warehouse of the Corporation shown as stock-transfer whereas, in fact, it was sent directly to the customers. The fact that it was sent directly to the customers was only noted in the separate papers and not shown in despatch notes. The assessing authority on the basis of documents on record assessed the respondent to central sales tax in respect of assessment years 1982-83 and 1983-84 holding that the documents had established an inter-State of imported cement and the respondent had attempted to camouflage the transaction in the manner aforestated. The appeals filed by the respondent were dismissed and the orders of assessment were upheld by the Appellate Assistant Commissioner. The second appeals preferred by the respondent before the Tamil Nadu Sales Tax Appellate Tribunal were also dismissed. The aforesaid orders of the Tribunal were challenged by the respondent in two revision cases filed in the High Court. The High Court by the impugned judgment and order has set aside the orders of assessment and also the orders passed in the first and second appeals. The State of Tamil Nadu is in appeal.
(2.) The only ground on basis whereof the High Court has set aside the orders of assessments is that the unloading of cement at the Tuticorin port in Tamil Nadu was purely a fortuitous circumstances as, according to the respondent, when the ship came, the port of Cochin was congested and there would have been considerable delay and additional expense if the ship had to wait for a berth at Cochin and, therefore, Tuticorin being the nearest other port, the ship berthed at the said port and cement was unloaded there for the purpose of transportation from the State of Tamil Nadu to the State of Kerala.
(3.) Learned counsel for the appellant contends that before the High Court there was no material whatsoever for coming to the conclusion that the ship berthed at Tuticorin because of congestion at Cochin port and that being the only basis for setting aside the orders of Sales Tax Authorities, the impugned judgment is clearly erroneous and unsustainable.;