- (1.) THIS Revision has been directed against the judgment dated March 21, 1987 passed by Rajasthan Sales Tax Tribunal, Ajmer by which the Tribunal allowed the appeal filed by the assessee and set aside the enhanced tax and penalty imposed by the Assessing Authority.
(2.) BRIEF facts of the case are that the assessee M/s Modern Electronics is a registered firm doing its business at Bikaner with Branch office at Sri Ganganagar known as Standard Radios. For the assessment years 1969-70, 1970-71, 1971-72, and 1972-73, the assessee firm filed its return as nil. For the assessment year 1971-1972 the dispute relates to the sales of Kelvinator Refrigerator made in Sri Ganganagar which were received from M/s Spancer & Co. Delhi, who are the distributors of Kelvinator Refrigerators. The case of the assessee is that sales in Ganganagar district of these refrigerators to the individual and the Government Department were made by the Spencer & Co. direct to the customers on an order placed by them and the payment of the Refrigerators were received directly by the Spencer & Co. and the petitioner acted as a service agency only and, therefore, the sales in question are made directly by the Spencer & Co. Delhi- As the petitioner was not making any direct Sales of Refrigerators and, therefore he filed nil return regarding the sales tax of these articles. The assessing authority, on the basis of material seised and the correspondence made between the Company and the assessee came to the conclusion that sales in question are direct sales and are the sales of the assessee and he, therefore, assessed the assessee for the assessment years mentioned above and enhanced the tax. The Assessing Authority was also of the view that as the assessee concealed the tax, he, therefore, levied the penalty under sec. 16 (l) (i) of the Rajasthan Sales Tax Act. Dissatisfied with the order of enhancing the tax and imposing the penalty, the assessee preferred an appeal before the Deputy Commissioner (Appeals) Commercial Taxes Department Bikaner who by his judgment dated 12th of October, 1982 rejected the appeal filed by the assessee. Aggried with the order passed by the Deputy Commissioner of Appeals, the assessee preferred an appeal before the Rajasthan Sales Tax Tribunal Ajmer and the Tribunal by its order dated 21st of March 1987 allowed the appeal filed by the assessee and quashed the enhanced tax as well as the penalty levied by the Assessing Authority, it it against this order passed by the Tribunal that the present revision petition has been filed by the Department. I have heard the learned counsel for the parties and have gone through the record of the case. The main contention of the counsel for the Department is that the Tribunal has not considered and discussed the evidence and has not given any finding, but set aside the judgment passed by the Deputy Commissioner (Appeals) arbitrarily. As no finding has been given by the Tribunal, the judgment passed by the Tribunal deserves to be quashed and set aside. Shri Vineet Kothari, learned counsel for the assessee, on the other hand, supported the order passed by the Tribunal. According to Shri Kothari, after discussing the evidence on record, the Tribunal has given specific finding that the sales in the present case are directly made by the Spencer & Co. and there was no sale by the assessee. Mr. Kothari further pointed out that it is an admitted fact that the assessee earned only commission from the Spencer & Co. and the Department has already charged Central Sales Tax on these sales and both the facts have not been disputed by the Department and the findings arrived at by the Tribunal are purely findings of fact and no revision lies on the findings of fact under section 15 of the Sales Tax Act. The revision is maintainable only on the point of law. I have considered the rival submissions made by the counsel for the parties. The Tribunal while deciding the case has placed reliance over the Division Bench judgment of the Tribunal in case C. T. O. Vs. Associated Engineers (1) and applying that principle came to the conclusion that the sales in question are not the sales made by the assessee. The Tribunal also pointed out that the sales in the hands of the assessee in the present case has not been proved and he, therefore, set aside the enhanced tax and penalty. The Tribunal also set aside the interest under section 11 (b) of the Rajasthan Sales Tax Act as well as the other penalty. It will not be out of place to mention here that the judgment relied upon by the Tribunal was affirmed by the Rajasthan High Court in C. T. O. Vs. Associated Engineers (2) in which it was held as under: - "that if two conditions are satisfied, the sale becomes inter-state sale on which tax could be levied under the Central ST Act. In agreement to sell is undoubtedly an element of sale. In fact sale consist of three legal steps (i) that there is an offer; (ii) that there is agreement to sell when the offer is accepted; and (iii) that in pursuance of the said agreement to sell a concluded sale takes place. In the instant case there was offer when the prospective purchaser made applications to the company for booking Vespa XE Scooter for them after paying to the company his advance. The offer was accepted by the Company. When the company intimates to the respective purchasers the allotment of Vespa Scooter to him along with its price, excise duty, the mode of payment of price and the time for delivery of the Vespa XE Scooter by the Company to the prospective purchaser and when the latter did not raise any objection against any of the terms and conditions contained in the letter of allotment that in pursuance of this agreement to sell, there was movement of the scooter from U. P. State to Rajasthan State and ultimately when the purchaser paid its full price and took delivery of the specified scooter, allotted to him, there was a concluded sale of the scooter. The agreement to sell contained an express stipulation regarding the movement of goods from Uttar Pradesh to Udaipur in Rajasthan State. In pursuance of that goods in fact moved from U. P. State to Rajasthan State. The concluded sale took place in Rajasthan State where the scooters were sent from a different State i. e. from Uttar Pradesh from where the movement of goods commenced. The proposition of law that clause (a) of section 3 of the Central Act covers sales, other than these included in clause (b) of the said section, in which the movements of goods from one State to another is the result of a covenant or incident of the contract of sale and the properties in goods passes in either State is Well settled by series of decisions of the Supreme Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Therefore, the Tribunal was right in holding that these 18 scooters were not sold by the non-petitioner to the purchaser but they were sold by the Company to the purchaser in the course of inter-state trade or commerce and they were not liable to any sales-tax under the Rajasthan Act being inter-state sales and consequently no penalty u/s 16 (1) (a) of the Rajasthan Act could be imposed upon the non-petitioner by the Assessing Authority. " The facts of the present case are similar to the case of Commercial Taxes Officer Vs. Associated Engineers. The reasoning given by the High Court in the Associated Engineer's case fully applies to the present case. When the Tribunal placed reliance over the judgment which has now been stood affirmed by the judgment of the Rajasthan High Court and gave a finding that the sales question are not the sales in the hands of the assessee. This finding is base upon the judgment of the Division Bench of the Tribunal as well as the guide-lines given by the Supreme Court is a finding of fact and deserve no interference as no revision lies against the findings of fact as per section 15 of the Rajasthan Sales Tax Act. In the result, the revision petition is dismissed without any order a to costs. .;