Prakash Krishna, J. - (1.) THESE two revisions have been filed by the Commissioner, Trade Tax, U. P., Lucknow, against a common order dated May 24, 2000 passed by the Tribunal in two connected Second Appeal Nos. 87 and 88 of 2000 relating to the assessment years 1996 -97 and 1997 -98 (Central).
(2.) THE dealer -opposite party carries on the business of manufacture and sale of sugar, sheera, Indian -made foreign liquor, denatured sprit, etc. There is no dispute with regard to the production and sale of the dealer -opposite party. The dispute is only with regard to rejection of stock transfer of Indian -made foreign liquor. For the assessment year 1996 -97 the assessing authority rejected the claim of stock transfer to the tune of Rs. 1,27,04,079.49. Similarly, for the assessment year 1997 -98 the assessing authority rejected the claim of stock transfer with regard to Rs. 8,16,12,510. The case of the dealer was that it transferred the Indian -made foreign liquor to its depots situate in Punjab and Rajasthan. The assessing authority rejected the claim of the stock transfer on the ground that the said goods were moved outside the State of U. P. in pursuance of a prior contract with M/s. B. D. A. Ltd., Bombay. A contract was entered into with the said party on August 9, 1996, according to the dealer. The assessment order was challenged in appeal. The first appellate authority was of the view that under the excise law of Punjab and Rajasthan, import of Indian -made foreign liquor was prohibited in the States of Punjab and Rajasthan. The dealer -opposite party had opened their depots in these places and goods were transferred from Pilkhani Distillery to these places. The first appellate authority remanded the matter back for fresh consideration to the assessing authority with certain directions to examine the aforesaid claim of the dealer -opposite party in the light of the agreement and other material on the record, by the order dated January 11, 2000, in respect of these two years. On further appeals to the Tribunal, at the instance of the dealer, the Tribunal allowed the second appeals as it was of the view that the order of remand was not justified as the first appellate authority itself has recorded all the necessary findings and found that it was a case of stock transfer. In the revision the following questions of law have been sought to be raised: (i) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal has rightly accepted the dealer's declared transactions of the stock transfer despite the fact that there was sufficient evidence available on record to establish the impugned transactions to be related with the inter -State sales ? (ii) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal has properly utilized the material available on record ? The contention of the learned Counsel for the Department is that in the survey dated September 24, 1997 conducted at M/s. Pilkhani Distillery certain incriminating materials were found. The document (exhibits 1 to 7) seized at the time of survey conducted at Pilkhani Distillery establishes that it was not a case of stock transfer as the goods were moved from manufacturing unit to Rajasthan and Punjab (outside the State of U. P.) in pursuance of the orders placed by its purchasers. He further submits that the assessing authority on making an analysis of the agreement entered into with M/s. B. D. A. Ltd. Bombay reached the conclusion after taking into consideration the transfer invoices, G. R., etc., that the claim of stock transfer, as set out by the dealer -opposite party, is not established. It, on the contrary, is inter -State transfer. The first appellate authority directed the assessing authority to consider the matter afresh with certain directions. The Tribunal has wrongly assumed that it was found by the first appellate authority that the transaction in question is a stock transfer, which in fact is incorrect. He further submits that at the most the Tribunal should have asked the first appellate authority to decide the appeal itself instead of remanding the matter to the assessing authority. The Tribunal could not have allowed the appeal directly.
(3.) SRI Bharatji Agrawal, learned senior counsel, on the other hand, supports the impugned order and submits that on the facts it is established that the transactions in question are nothing but stock transfers and the matter, if so required by the court, be remanded to the Tribunal for reconsideration.;