- (1.) S. N. TIWARI, J. Heard. With the consent of the parties all these revision are being decided together. It is undisputed that respondents in all the three revisions were working as commission agent and were registered dealer under the U. P. Sales Tax Act, 1948 S. T. R. No. 82 of 1988, under the U. P. Sales Tax Act relates to the assessment year 1977-78, S. T. R. No. 371 of 1988 (under the Central Sales Tax Act, 1956) relates to the assessment year 1976-77 and S. T. R. No. 372 of 1988 (under the U. P. Sales Tax Act) relates to the assessment year 1976-77. The only dispute relates to alleged purchases made by the dealer on behalf of ex-U. P. principal S. T. R. No. 82 of 1968 relates to the judgment delivered in Appeal No. 132 of 1982 on September 17, 1987 while other two revisions relate to Appeal Nos. 214 of 1983 and 294 of 1983 (U. P. Sales Tax Act and Central Sales Tax Act, respectively) relates to the judgment delivered on September 9, 1987. In all the three appeals the Tribunal held that the disputed transactions are purchases in the course of inter-State trade and mere issue of certificate under section 3c (1) makes no difference.
(2.) IN reply learned Standing Counsel contended that in view of section 12a (2) as amended by Act No. 28 of 1991 the certificate should be treated as conclusive evidence to prove the liability of the dealer as regards his claim that he is not liable to tax under section 3-D or section 12a (2) : " Where any dealer claims that he is not liable to tax under section 3-D in respect of any transaction of purchases - (a) any declaration made or certificate issued by him admitting to be the first purchaser and accepting the liability to pay purchase tax, shall be conclusive evidence of his liability to pay the purchase tax in respect of the transaction specified in such declaration or certificate : (b) the burden of proving the existence of facts and circumstances on the basis of which he claims such exemption from liability shall lie upon him, and, in particular, the dealer shall also be liable to disclose full particulars of the person from whom he has purchased the goods in such transaction of purchase; and (c) no such claim shall be accepted unless reasonable opportunity of being heard has been given to the person whose particulars are disclosed by such dealer. " On the contrary the learned counsel for the respondent contends that they are not claiming exemption under section 3-D of the Act and, therefore, the presumption under section 12-A of the Act could not be raised against them. It is a fact that in all the cases the Tribunal gave a finding of fact that the transactions were purchases in the course of inter-state trade. It was argued that the transaction was covered under section 3 of the Central Sales Tax Act and the dealers are not claiming exemption under section 3-D of the Act. In support of this contention a reference was made to the decision of this Court in the case of Commissioner of Sales Tax, U. P. Lucknow v. Radhey Shyam Kedar Nath, Hamirpur 1996 UPTC 1132 where this Court observed as follows : ". . . . . . . . . . Such purchases on commission agency would be in the course of inter-State trade and commerce and, therefore, could not be taxed under section 3-D of the Act inasmuch as such transactions would be covered by section 3 of the Central Sales Tax Act. " Learned counsel for the dealer also referred the case of Commissioner of Sales Tax v. Nand Kishore Chhaki Lal, Mauranipur 1995 UPTC 897. In that case the point raised was about the taxability of purchases for ex-U. P. principals. The Tribunal has held that such purchases were in the course of inter-State trade and, therefore, purchases were not taxable under the U. P. Trade Tax Act. This view has been affirmed by the honourable Supreme Court in Commissioner of Sales Tax v. Bakhtawar Lal Kailash Chand Arhti [1992] 87 STC 196; 1992 UPTC 971 (SC ). It was held that the Tribunal's decision on this point is legal and does not require any interference.
(3.) THE honourable Supreme Court in the case of Bakhtawar Lal Kailash Chand Arhti [1992] 87 STC 196; 1992 UPTC 971, observed as follows : ". . . . . . . . . . . where a sale or purchase, though effected within the State of U. P. occasion the movement of goods sold/purchased thereunder from the State of U. P. to other State, it becomes an inter-State sale. Such a sale cannot be taxed by the Legislature of Uttar Pradesh. It is taxable only under the Central Sales Tax Act. 1956. " A Division Bench of this Court in the case of Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh [1978] 41 STC 147; 1977 UPTC 81 observed as follows : ". . . . . . . Now, it is not disputed that the State can charge only such tax as is permissible under the law. Liability to tax does not depend on the fact as to whether a dealer has or has not charged any sales tax from its customers, or has charged a higher amount. Thus, if a sale is liable to be charged at a lower rate, the State cannot insist on realising a higher amount solely on the ground of a large amount being charge. Relief can be given when an illegal impost not authorised by the law is made. . . . . . ";