- (1.) THE petitioner, inter alia, carries on the business of export of frozen buffalo meat. The head office of the petitioner is in Mumbai, while it has a branch at Sahibabad in district Ghaziabad. According to the petitioner, its head office receives orders from foreign purchasers for the supply of frozen meat. The petitioner allegedly fulfils its export orders by purchasing the frozen meat from the State of Uttar Pradesh and dispatches the consignments to Mumbai through its branch at Sahibabad. The consignments are thereafter consolidated into containers for export out of India. The petitioner has stated that the entire transaction takes place against form H under the Central Sales Tax Act, 1956 (hereinafter referred to as "the Act"). For the assessment year 2009 -10, a notice has been issued to the petitioner by the Deputy Commissioner, Commercial Tax, Division -15, Ghaziabad, calling for a disclosure of information. The notice, inter alia, informs the petitioner of the necessity of furnishing form F and draws the attention of the petitioner to the fact that it had not complied with the requirement thus far. Upon receipt of the notice, the petitioner moved the Sales Tax Officer (C -124) at the Central Repository in Mumbai on 13th June 2013 for issuance of form F. The petitioner was informed by a communication dated June 27, 2013 that form F could not be issued since form H in respect of certain transactions, as indicated in the letter, had already been issued.
(2.) THE relief which the petitioner now seeks even before the assessment can be completed is principally for restraining the assessing officer from deeming those sales in the course of exports which are duly covered by form H between the branch office at Sahibabad and the head office at Mumbai to be inter -State sales only on the ground of refusal of the Maharashtra VAT authorities to issue form F in respect of the transactions. In the alternative, the petitioner has sought to challenge the validity of section 6A of the Act.
(3.) SUB -sections (1) and (3) of section 5 of the Act provide as follows : "5. When is a sale or purchase of goods said to take place in the course of import or export. - -(1) A sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India. (2)... (3) Notwithstanding anything contained in sub -section (1), the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India shall also be deemed to be in the course of such export, if such last sale or purchase took place after, and was for the purpose of complying with the agreement or order for or in relation to such export." Section 6A was introduced with effect from May 11, 2002 by way of an amendment. Section 6A is to the following effect : "6A. Burden of proof, etc., in case of transfer of goods claimed otherwise than by way of sale. - -(1) Where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and for this purpose he may furnish to the assessing authority within the prescribed time or within such further time as that authority may, for sufficient cause, permit a declaration, duly filled and signed by the principal officer of the other place of business or his agent or principal, as the case may be, containing the prescribed particulars in the prescribed form obtained from the prescribed authority, along with the evidence of dispatch of such goods and if the dealer fails to furnish such declaration, then, the movement of such goods shall be deemed for all purposes of this Act to have been occasioned as a result of sale'." ;