Decided on April 10,2003

Tata Tetley Ltd Appellant


- (1.) M/s. Tata Tetley Ltd., Willingdon Island, which is an assessee on the files of the Sales Tax Officer, Special Circle (Produce), Mattancherry with KGST Registration No. 24141403 and CST Registration No. 24146403 is the revision-petitioner. It is a company promoted jointly by Tata Tea Ltd., and Tetley International Ltd., mainly engaged in export of tea bags. It has got a factory which is registered as a 100 per cent export oriented concern. The petitioner has been procuring tea from various auction centres like Calcutta, Kochi, Coonoor, etc. According to them, the tea so purchased are brought to Cochin where it is blended, packed and exported. It is also stated that though the petitioner has sales tax registration in Calcutta where the petitioner is purchasing tea in auction, the petitioner had no staff to manage their office at Calcutta and therefore the services of employees of Tata Tea Ltd., are utilised for purchase of tea in Calcutta auction for stock transfer to Cochin.
(2.) According to the assessee it sent a consignment of 8565.800 kg., of tea purchased by it from J. Thomas and Company Ltd., at Calcutta auction through Tata Tea Ltd., was despatched by Tata Tea Ltd., on behalf of the petitioner to Cochin. The said consignment was intercepted at Walayar check-post on August 22, 1996 on the ground that the transport was not accompanied by the documents contemplated under Section 29(2) of the Act. A notice dated August 22,1996 was issued to Tata Tea Ltd. Thereupon the petitioner approached the Sales Tax Inspector, Sales Tax Check-Post, Walayar, and got the goods released on furnishing security deposit of Rs. 82,000 by way of bank guarantee evidenced by an order dated August 22,1996. Subsequently the matter was adjudicated by the Sales Tax Officer (Enquiry) as contemplated under Section 29A(4) and passed an order dated January 28, 1997 (annexure B) imposing a penalty of Rs. 81,665 and ordered conversion of the security amount to penalty. Being aggrieved by the said order, the petitioner filed appeal before the Additional Appellate Assistant Commissioner of Agricultural Income-tax and Sales Tax, Ernakulam, who by his order dated January 28, 1998 (annexure C) dismissed the appeal confirming the penalty order. This was affirmed in further appeal by the assessee before the Tribunal.
(3.) Sri Jayasankar Nambiar, learned Counsel appearing for the petitioner submits that the assessee is a 100 per cent export oriented concern which is registered under the Kerala General Sales Tax Act, 1963 and under the Central Sales Tax Act, 1956 the assessee purchases tea from Calcutta, Kochi, Coonoor, etc., brings the same to Willingdon Island at Ernakulam where the tea is blended, packed and exported to foreign countries. The counsel also submits that the petitioner also effects sale of tea dust locally and the tax due in respect of the said transactions is also being paid to the sales tax department. The counsel further submitted that the consignment in question was purchased from Calcutta through Tata Tea Ltd., which is a sister concern of the petitioner on behalf of the petitioner in Calcutta auction and the same was transported to Kochi as per the instructions of the petitioner. The counsel also submitted that the entire tea so brought was exported after blending and packing at Willingdon Island. The counsel submits that the transaction in question is only a stock transfer and by a mistake the employees of the Tata Tea Ltd., to whom instructions were issued had inadvertently omitted to mention the name of the petitioner as consignor. The counsel also submitted that the petitioner had accounted the entire quantity in the books of account maintained at Kochi and corresponding entries were effected in the books maintained at Calcutta. He further submitted that the petitioner had issued F forms to its branch at Calcutta and further there is evidence to show that the entire quantity of tea brought from Calcutta had been exported to foreign countries. The counsel submits that the cumulative effect of all these facts will show that there is no attempt at evasion of tax as alleged by the respondent. The counsel further submitted that the grounds on which the penalty was imposed are that the documents accompanying the transport were defective, that the petitioner had never conceded any transaction in Kerala prior to the detention of the goods in issue which are not correct. He points out that in annexure A document the registration number shown on the right hand top is the registration number of the assessee and that it shows that the weighment list of teas despatched to Tata Tetley Ltd., Kochi. According to the counsel this would clearly show that the petitioner had exported the goods which were transported from Calcutta. The counsel further submitted that the Tribunal for the first time has mentioned about these inadequacies. The counsel also submitted that the observations made in paragraph 8 of the appellate order are not fully correct as they do not reflect the correct legal position. The counsel also submitted that the assessment for the year in question is pending before the Tribunal where the assessee had produced all the documents and that if the impugned order stands it may create difficulties for the petitioner.;

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