A.PASAYAT,AG.C.J. - (1.) APPLICATIONS for reference under section 24 (1) of the Orissa Sales Tax Act, 1947 (in short, 'the Act') having been refused, the present applications under section 24 (2) of the Act have been filed. Since identical disputes are involved, this order shall govern each of the cases under consideration.
(2.) THE assessment years involved are 1976-77, 1977-78 to 1983-84 and 1990-91. While disposing of the appeals filed under section 23 of the Act, the Orissa Sales Tax Tribunal (in short, "the Tribunal") upheld the orders passed by the Assistant Commissioner of Sales Tax, Sundargarh Range, whereby the assessments made under rule 12 (5) of the Central Sales Tax (Orissa) Rules, 1957 (in short, "the Orissa Rules") read with the Central Sales Tax Act, 1956 (in short, "the Central Act") for all the aforementioned period except for the assessment year 1990-91 for which the assessment was set aside for fresh adjudication. Background facts relevant to be noted for the purpose of these cases are as follows : The assessee, M/s. I. D. L. Chemicals Ltd. (presently known as I. D. L. Industries Ltd.) manufactures industrial explosives and accessories with its head office at Hyderabad in the State of Andhra Pradesh, and factory at Rourkela in the State of Orissa. Sales are effected both inside the State of Orissa and in course of inter-State trade and commerce. Apart from the sales, goods manufactured in its factory are despatched to various places outside the State of Orissa. Originally the assessing officer on examination of accounts noted for the periods 1977-78 to 1983-84 that the assessee had sold a major portion of its products to Government undertakings, namely, Coal India Ltd. , and National Mineral Development Corporation. It was observed in those proceedings that the goods in question had moved from the factory at Orissa to outside consignment agents for storing in their magazines on the basis of supply orders of the aforesaid parties and the consignment agents had no right to dispose of the goods in any other manner except acting as conduit. The transactions were held to be in course of inter-State sales, and accordingly tax was levied, and extra demands were raised. The matter has come before this Court in applications under section 24 (2) of the Act. The applications were filed by the petitioner. By judgment dated February 11, 1992, in S. J. C. Nos. 2 to 8 of 1989, this Court directed fresh assessment, by remanding the matter to the assessing officer. Directions to the assessing officer were, inter alia, (i) to examine the terms of the letter relating to insurance when the goods moved from Orissa to find out as to who bears the said charges; (ii) to examine if on account of diversion of the goods before it is supplied to the collieries, there would be breach of contract, and (iii) to examine the quotations themselves and minutes of discussion which culminated with the aforesaid supply orders, for arriving at the conclusion on the question of inter-State sale. Thereafter the assessing officer on examination of the documents and after conducting enquiry from Western Coal Field Ltd. , a subsidiary of Coal India Ltd. , as well as the consignment agent M/s. Abdulhusan M. Alaboxji at Nagpur, held the transactions effected by the consignment agents with the Coal India Ltd. , and National Mineral Development Corporation to be sales in the course of inter-State trade and commerce and in the absence of valid declarations levied tax at the appropriate rate. In the first appeal the Assistant Commissioner of Sales Tax while holding that the despatches made by the assessee to the consignment agents were branch transfers coming under section 6-A of the Central Act set aside the assessments for these years with a direction to contact the office of the Coal India Limited at Calcutta in order to verify the quotations and minutes of discussion culminating with the supply orders for arriving at an independent conclusion on the question of inter-State sale. Being aggrieved by the aforesaid order of the Assistant Commissioner, the assessee filed appeals before the Tribunal which were numbered as S. A. Nos. 5 (C) to 11 (C) of 1996-97. For assessment year 1976-77, the Sales Tax Officer disallowed the claim for concessional rate of tax on Rs. 2,87,001. 59 for want of valid declarations in form "c". He also disallowed a sum of Rs. 2,86,75,597. 97 claimed as stock transfer to its consignment agents at different places outside the State in respect of sales ultimately made to Coal India Ltd. , and National Mineral Development Corporation holding the same as sales in the course of inter-State trade and commerce. Against the said order of assessment, assessee preferred first appeal. The Assistant Commissioner of Sales Tax confirmed the assessment. The said order was challenged before the Tribunal which set aside the assessment and remanded the matter with certain directions to the assessing officer for reassessment. In the reassessment, the Sales Tax Officer keeping in view the direction given by this Court rendered in respect of the assessment years 1977-78 to 1983-84, as referred to above, held that the sales made in respect of public undertakings like National Mineral Development Corporation Limited, coal mines authorities and Coal India Limited were in the course of inter-State trade and commerce and accordingly disallowed the claim of stock transfer. He, however, allowed concessional rate of tax on a portion of the sales on resubmission of corrected declaration forms. In first appeal, the Assistant Commissioner accepted the claim of stock transfer and allowed exemption on that score. The Revenue preferred appeal before the Tribunal against the aforesaid order of the Assistant Commissioner which was numbered as S. A. No. 22 (C) of 1996-97. For the assessment year 1990-91 the assessing officer found that the petitioner failed to produce declarations in form "c" for Rs. 85,66,544. 96 out of total claim of Rs. 5,39,40,196. 61, in respect of concessional rate of tax. It was also noticed that documents like copies of the agreements, bill of lading towards export sales for Rs. 17,79,485. 25 out of total claim of exemption Rs. 31,65,333,24 were not produced. Accordingly he levied tax on the said amount. Freight charges to the extent of Rs. 24,63,132 claimed as deduction were disallowed on the ground that same formed inward freight includible in sale price. The assessing officer found that the assessee had claimed exemption of Rs. 15,04,56,496. 83 towards transfer of stock to the consignment agents for sales outside the State to different collieries, and the goods had moved from the factory at Orissa specifically for satisfying the requirement of Coal India Ltd. , as a result of prior contract with it, for delivery to different collieries. Accordingly, it was observed that the transfer made to the consignment agents were in the nature of inter-State sales within the ambit of section 3 (a) of the Central Act. On such findings tax was levied on the entire amount claimed as stock transfer including estimated freight on such transfer. In first appeal, the Assistant Commissioner found that the assessee was not given reasonable opportunity to produce the wanting declaration form "c" in support of claim of concessional rate of tax, and necessary documents in respect of sales claimed as export sales. On such observations, he accepted the declarations in form "c" which were produced before him, and directed the Sales Tax Officer to consider those declarations in order to allow the claim if they are otherwise found to be in order. With regard to claim of export sale, he directed the assessing officer to allow further opportunity to the assessee for production of necessary documents in support of the claim of exemption. He also allowed a sum of Rs. 24,63,132 separately charged in the bills towards freight. So far as claim of stock transfer is concerned, he found that there was no evidence linking the movement of goods to the magazines outside the State with a concluded sale and allowed the claim of branch transfer with a direction to produce necessary evidence for that portion of the branch transfer for which declarations in form "f" were wanting at the time of assessment. Accordingly the matter was remanded for reassessment. Said order of the Assistant Commissioner was assailed before the Tribunal by the Revenue in S. A. No. 23 (C) of 1996-97.
(3.) ON consideration of rival contentions raised by the parties before it, following points were taken up for consideration by the Tribunal : (i) Whether the transactions in respect of all the years under appeal are stock transfers made to the consignment agents of outside the State or inter-State sales under section 3 (a) of the Central Sales Tax Act ? (ii) Whether freight charges include sale price in respect of the assessment year 1990-91 ? (iii) Whether the learned Assistant Commissioner of Sales Tax is justified to allow opportunity for production of wanting documents relating to export sales and to allow acceptance of declarations in form "c" produced before him after verification by the Sales Tax Officer ? ;