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PETITIONER: ASHOK LEYLAND LIMITED

       Vs.

RESPONDENT: UNION OF INDIA &  ORS.

DATE OF JUDGMENT:       20/02/1997

BENCH: B.P. JEEVAN REDDY, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T B.P. JEEVAN REDDY, J.      Leave granted.      Ashok Leyland Limited, the appellant herein, *  is *    Though     several    other     dealers     are     the petitioners/appellants  herein,  We  shall  refer  to  Ashok Leyland as  a  representative  dealer.  The  discussion  and directions made  in this judgment shall, however, govern all the  petitioners/appellants   herein.  one   of  the   major manufacturers of  trucks and  other motor vehicles in India. Its registered  office is  at Madras  [Chennai]. The  plants manufacturing trucks  and motor  vehicles are  situated   in the state  of Tamil  Nadu as  well as  in other  States. The trucks and vehicles manufactured by it are sold all over the country. For  its business  purposes, it  maintains Regional Sales officers  [R.S.Os.] in  different parts of the country like,   Bangalore,  Trivandrum,  Vijayawada,  Pune,  Nagpur, Indore, Calcutta,  Bhuvaneshwar,   Gauhati, Pondicherry, and so no.   The  appellant says  that  each  of  these  R.S.Os. maintains an  office,  a  stock  yard  and  other  necessary paraphernalia for  receiving,      stocking,  repairing  and delivering motor  vehicles to their customers. The appellant says that almost seventy percent of its sales are to parties other than state Transport Undertakings [S.T.Us.]. The sales to S.T.Us.  are in  the region  of  thirty  percent  of  its production. The  R.S.Os., the  appellant says,  contact  the local purchasers  and the S.T.Us., book the orders and  also deliver the  vehicles to  the pursuant  to sales effected by them. The  appellant always  keeps the  R.S.Os. well stocked having   regard   to   their   requirements.   By   way   of illustrations,  it   is  stated,  the  R.S.O.  at  Hyderabad receives vehicles  from Tamil  Nadu from  time to  time.  In respect of  vehicles sold  in Andhra  Pradesh -  whether  to Andhra Pradesh  State Road Transport Corporation or to other parties -  sales tax is levied and collected by the State of Andhra Pradesh  inasmuch as they are intra - State sales for the purpose  of the  Andhra Pradesh  General Sales  Tax Act. Over the  years, the appellant says, it has been sending the trucks, chassis  and other  vehicles to R.S.Os. all over the country under  ‘F’ Forms  produced by  it questioned  by any

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one. However,  the State  of Tamil Nadu has been seeding, in the  recent  times,  to  reopen  the  concluded  assessments contending that  the transfer of vehicles from Tamil Nadu to other States  was not  mere consignments  [without effecting sales] but  constitute inter-state  sales within the meaning of clause  (a) of  Section 3  of the  Central Sales Tax Act, which are  taxable in  the State  of Tamil Nadu by virtue of the provisions  of the Central Sales Tax Act. The attempt of the State  of Tamil  Nadu is  to treat  the said movement of vehicles as  inter-State sales  and  tax  them  which  would ultimately go back to that State by virtue of the provisions contained in  Articles 269  and 286  of the Constitution and the Central  Sales Tax  Act. The  appellant says that it did not effect any inter-State sales and that there was only one sale in  the other  State which has already been taxed under the sales  tax  law  of  that  other  State.  The  appellant complains that  the same  transaction cannot be taxed twice, once as  an intra-State  sale by  one State and again by the State of  Tamil Nadu  as an  inter-State sale. The appellant complains that the reopening of assessments - in some cases, even the  re-assessment has  been made and Central sales tax levied - and  taxing the same transaction once again [by the State of  Tamil Nadu]  is causing  serious harassment to the appellant, making  it impossible  for it  to  carry  on  its business operations  in a  smooth  and  orderly  manner.  It approached the  Madras High  Court with  the said grievance. Thought a  number of  factual issues were also raised in the writ petitions  filed by  the appellant,  it was  stated  by their counsel  at the  time of  hearing  that  they  do  not propose to  invite the  decision of  the High Court on these factual issues  and  that  they  would  be  confining  their submissions  only   to  the  questions  of  law,  viz.,  the interpretation of   Section 6-A of the Central Sales Tax Act and the  power to  reopen the orders accepting ‘F’ Forms. In certain other writ petitions filed by the appellant, several State governments  were impleaded as respondents. The prayer in these writ petitions was that inasmuch as sales to S.T.Us of those  States are  being treated and taxed as inter-State sales by  the State of Tamil Nadu, the levy of tax under the other State  sales tax enactments treating the very sales as inter-State  sales   within  those   respective  States   is unsustainable, and therefore, those State governments should be directed  to refund  the tax  collected by  them  to  the appellant. The  High Court  had dismissed  to writ petitions holding that  (i) the  Madras High  Court cannot  direct the other  State  governments  to  refund  the  tax  levied  and collected under their respective State sales tax enactments. The appellant  has to  approach the  authorities under those Acts or  the courts in those States for such relief, if they are so advised. (ii) the provisions contained in Section 6-A have no  special status or content and cannot be elevated to the   status of  a constitutional  provision; it is like any other provision  under the  Central Sales Tax Act. The order accepting Form  ‘F’ is  nothing  more than a step-in-aid of, or a  part and  parcel of, the assessment proceedings. (iii) an order  passed by  the assessing  authority accepting Form ‘F’ cannot be reopened except in accordance with Section 16, 32 and  55 of the Tamil Nadu General Sales Tax Act read with sub-sections (2)  and (2A) of Section 9 of the Central Sales Tax Act.  A mere  change of  opinion is  not  sufficient  to reopen the order accepting Form ‘F’. Having declared the law thus, the  High  Court  directed  the  appellant  to  prefer appeals before  the appropriate appellant authority where an order of  assessment has  been made and to go and show cause to  the   assessing  authority   where  the   appellant  has

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approached the High Court at the sate of show-cause notice.      Sri K.  Parasaran, learned  counsel for  the appellant, urged the following contentions : (1)  Section 6-A creates a conclusive presumption which come into play on proof of the truth of facts stated in Form ‘F’. This conclusive  presumption cannot be defeated by resorting to the  power of reopening conferred upon the authorities by Section 16 of the Tamil Nadu General Sales Tax Act read with Section 9(2)  of  the  Central  Sales  Tax  Act.  The  order accepting Form  ‘F’ as  true cannot also be reopened for the reason that  such order  of acceptance gives rise to certain consequences which  cannot be  rectified even  if the  order accepting Form  ‘F’ is  reopened and  revised. The  vehicles have been  transferred/consigned to  the appellant’s R.S.Os. in various  States which  R.S.Os. have  issued Forms  ‘F’ in that behalf  and which,  on being  produced by the appellant before its  assessing authority, have been accepted as true. This means  that the  sale of the said vehicles in the other State is  an intra-State  sale in that State and has in fact been taxed  as  such.  Now  if  the  Tamil  Nadu  Sales  Tax authorities propose  to reopen the said orders accepting the said Forms  ‘F’ and levy Central sales tax treating the said movement of  vehicles to  other States as inter-State sales, the consequence would be that though there is only one sale, it  is  being  taxed  by  two  different  States  under  two different State  sales, the consequence would be that though there is  only one  sale, it is being taxed by two different States under  two different  enactments. This cannot be. The cannot be.  The show-cause  notices issued by the Tamil Nadu authorities do  not  say  that  there  was  a  sale  by  the appellant to  its R.S.O.  and another  sale by the R.S.O. to the State  Transport Undertakings. Indeed, there cannot be a sale between  the appellant  and its  own  R.S.O.  A  person cannot sell to himself. (2)(a)    Section 6-A  is an independent provision. An order passed thereunder  is not a part of the assessment order. An order under  Section 6-A has an independent existence of its own. It  is neither  subject to appeal nor is it amenable to power of revision. The order under Section 6-A is the result of a  conscious adjudication.  For all these reasons too, it must be held that an order accepting Form ‘F’, once made, is conclusive and is not liable to be reopened. (b)  even if  it is  held by  a process of reasoning that an order accepting  Form ‘F’  as true  is amenable  to power of reopening under  Section 16  of the Tamil Nadu General Sales Tax Act read with Section 9(2) of the Central Sales Tax Act, even then  it must  be held that until and unless reasonable grounds exist  for doubting  the  truth  of  the  statements contained in Form ‘F’, it cannot be reopened. Merely because an assessment  is reopened,  the orders  accepting Forms ‘F’ cannot automatically  be  held  amenable  to  the  power  of reopening. (3)  All the  sales effected  by R.S.Os.  in  various  other States are  all of  the same pattern, whether the sale is to S.T.U.  or  to  any  other  person.  Curiously  enough,  the impugned  reopening  notices  are  confined  only  to  sales effected in  favour of  various State Transport Undertakings in several  States. No  such attempt  to reopen  is made  in respect of sales effected to persons other than S.T.Us. As a matter of  fact, the  S.T.Us. are nothing but manifestations of   their   respective   State   governments.   Since   the S.T.Us./State governments  purchase vehicles  in bulk,  they insist that  the sale  of vehicles  should take place within their respective  State so  that they  may be able to derive income in  the shape of sales tax on those sales. Unless the

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sales are  effected within  their  State  and  tax  is  paid thereon under  the sales  tax enactment  of that State, that State government  or S.T.U.  is  not  prepared  to  purchase vehicles from  the appellant.  Indeed, it is for this reason also that  the appellant maintains R.S.Os. almost in all the States in  the country. Simply because the orders are booked by the  R.S.Os. and sent to Head Offices, it does not follow that the  movement of  vehicles is  in pursuance of or is an incident of a contract of sale. (4)  Section 4   of  the  Central  Sales  Tax  Act  provides clearly that  (a) in  the case  of specific  or  ascertained goods, the  sale of  goods shall  be deemed  to  take  place inside a  State if  the goods  are within  that State at the time of  the contract  of  sale  and  (b)  in  the  case  of unascertained or  future goods,  the sale of goods should be deemed to  take place  inside a  State when  the  goods  are appropriated to the contract of sale by the seller or by the buyer, whether  the assent  of the  other party  is prior or subsequent to  such  appropriation.  This  principle  is  at variance with the general principle contained in the Sale of Goods Act. It must, therefore, be held that sale of vehicles takes place  only when  they are  appropriated towards their order and  the appropriation  is only  when the vehicles are earmarked for  delivery  to  the  S.T.Us.  The  vehicles  so appropriated are  always in the State to the S.T.U. of which the vehicles are earmarked and delivered. (5)  in the  absence of  any  Central  machinery  which  can decide disputes  between the  State, viz.,  where one  State claims that  a particular transaction is an inter-State sale and the  other State  claims that  it is an intra-State sale [within that  State,  i.e.,  itself],  an  order  once  made accepting Form  ‘F’ as  true  must  not  be  allowed  to  be reopened. If  it is  allowed to  be reopened, this Court may provide that  the appellant-assessee  is entitled to implead the  other  State  [which  has  levied  tax  upon  the  same transaction treating  it as  an intra-State sale within that State]  as   a   party-respondent   before   the   assessing authorities in  Tamil Nadu  [acting under  Central Sales Tax Act] so that an effective adjudication can be made as to the true nature  of the  transactions/sale. This  Court may also consider whether a direction should be given to the Union of India to  create such  a machinery in the interest of inter- State trade  and commerce  and to  ensure that the assessees are  not   harassed  and   prejudiced  by  taxing  the  same transaction twice over.      Sri A.K.  Ganguly, learned  counsel for  the  State  of Tamil  Nadu,   disputed  the   correctness  of  the  various submissions put  forward by  Sri Parasaran. He supported the reasoning and  conclusion  of  the  Madras  High  Court  and submitted that an order under Section 6-A accepting Form ‘F’ as true  will ordinary be passed in the course af assessment proceeding and  as part of the assessment order. There is no reason to  treat an  order under  Section 6-A  as  something different from  any other order under the Act. It is as much amenable to  power of reopening as nay other order under the Act. Whether  a particular  movement  of  goods  across  the boundaries of one State to another is a mere movement [i.e., in this  case, a consignment of goods by the Head Offices to its R.S.O.]  or whether  the movement  is  occasioned  by  a contract of  sale, is  a question  of  fact  and  is  not  a question of  law. The said question has to be decided by the appropriate authority  in each  case having  regard  to  the relevant facts  and circumstances.  The appellant  was  ill- advised to  approach the  Madras High  Court by way of  writ petitions at  the  initial  stage  of  proceedings.  Nothing

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prevented  the   appellant  to   satisfy  the   Tamil   Nadu authorities that  it has  effected no  inter-State sales and that the  transfer of  vehicles was  only a transfer without effecting a  sale. If  it succeeds  in establishing the said fact, it is obvious that no Central sales tax will be levied by the Tamil Nadu authorities.      Article 269 of the Constitution says that "taxes on the sale or  purchase of goods other than newspapers, where such sale or  purchase takes  place in  the course of inter-State trade or  commerce", among  other taxes, shall be levied and collected by  the Government  of India but shall be assigned to the  States in  the manner  provided in clause (2) of the said  Article   [vide  Article  269(1)(g)].  "Taxes  on  the consignment of  goods (whether  the consignment  is  to  the person  making  it  or  to  any  other  person)  where  such consignment takes  place in  the course of inter-State trade of commerce"  is one of the taxes mentioned in clause (1) of Article 269.  The power to levy consignment tax, however, is conferred upon the Parliament by virtue of Entry 92-B of the Union List.  So far  no such  tax has  been  levied  by  the Parliament. Clause  (2) of Article 269 provides that the net proceeds in  any financial year of any duty or tax mentioned in clause  (1) shall  not form part of the Consolidated Fund of India  but shall  be assigned  to the States within which that duty  or tax is leviable in that year and that the same shall be  distributed among  those States in accordance with such principles  of distribution  as may  be  formulated  by Parliament  by   law.  Clause   (3)  further  provides  that "Parliament may  by law  formulate principle for determining when a  sale or  purchase of, or consignment of, goods takes place in the course of inter-State trade of commerce".      By  virtue   of  clause  (1)  of  Article  286  of  the Constitution, the State legislature has no power to levy tax on a  sale which  takes place  outside that  State or  which takes place  in the course of import of goods into or export of goods  out of the territory of India. Clause (2) empowers the Parliament to formulate, by making a law, principles for determining when  a sale  or purchase  of goods  takes place outside the  State or  in the course of import or export, as the case  may be.  Clause (3)  of Article  286 need  not  be noticed for the purposes of this case.      It is  well-known that  Article 286 has been thoroughly recast by the Constitution [Sixth Amendment] Act, 1956 which also amended  Article 269  substantially. It is in pursuance of the  said Articles,  as  recast/amended  by  Constitution [Sixth Amendment]  Act,  that  the  Parliament  enacted  the Central Sales  Tax Act,  1956. Section  3 defines an "inter- state sale".  Section 4  sets out when a sale or purchase of goods can  be said  to have  taken place outside a State and Section 5  provides when  a sale or purchase of goods can be said to  have taken place in the course of import or export. It is  evident that  these provision have been made pursuant to Article 286 as well as clause (3) of Article 269. Section 6 of  the Central  Sales Tax  Act is  the charging  section. Section 6-A  has been  inserted by  the Amendment  Act 61 of 1972 with  effect from April 1, 1973. This provision appears to have  been enacted  in the  light of the judgment of this Court in  Tata Engineering and Locomotive Company Limited v. Assistant Commissioner  of Commercial Tax, Jamshedpur & Anr. [(1970) 20  S.T.C. 354]. Section 6-A provides that where any dealer claims  that he  is not  liable to  pay tax under the Central Sales  Tax 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

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principal, as  the case  may be,  not by reason of sale, the burden of  proving the said fact shall be upon him. For that purpose, he  may furnish  to the assessing authority, within the prescribed time, a declaration duly filled and signed by the principal  officer of  the other place of business or by his agent  or principal,  as the case may, be containing the prescribed particulars,  along with the evidence of despatch of such  goods  Form  ‘F’  have  to  be  obtained  from  the prescribed authority.  The section  further provides that if the assessing  authority is  satisfied after such enquiry as he may deem necessary, that the particulars contained in the declaration furnished  by the dealer ar true, he may, at the time of  or at  any time  before the  assessment af  the tax payable by  the dealer under the Central Sales Tax Act, make an order to that effect. Thereupon, the movement of goods to which the  declaration relates  shall  be  deemed,  for  the purpose of this Act, to have been occasioned other wise than as a  result of sale. It would be appropriate to set out the section in its entirety:      "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 be 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,      within such  further time  as  that      authority   may,   for   sufficient      cause, permit, a declaration, dully      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      particulars in  the prescribed form      obtained   from    the   prescribed      authority, along  with the evidence      of despatch of such goods.      (2)  If the  assessing authority is      satisfied after making such inquiry      as he  may deem  necessary that the      particulars   contained    in   the      declaration furnished  by a  dealer      under sub-section  (1) are  true he      may, at the time of, or at any time      before, the  assessment of  the tax      payable by  the  dealer  under  the      Act, make  an order  to that effect      and thereupon the movement of goods      to which  the  declaration  related      shall be  deemed for the purpose of

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    this Act  to have  been  occasioned      otherwise than as a result of sale.      Explanation  --  In  this  section,      ‘assessing authority’,  in relation      to a  dealer, means  the  authority      for the  time  being  competent  to      assess  the   tax  payable  by  the      dealer under this Act."      The Central  Sales Tax  Act has not created a machinery of its  own to assess and collect the tax levied thereunder. Probably because  the tax will ultimately go to the state in which the said tax is leviable, sub-sections (2) and (2A) of Section 9  provide that  the machinery  provisions under the respective State sales tax enactment shall be treated as the machinery provisions  under this  Act for all purposes. Sub- section (1) of Section 9 provides that the Central sales tax shall be  levied by the State from which the movement of the goods commences.  This provision  is evidently  relatable to clause (2)  of Articles  269, Section  13 confers  the rule- making  power   upon  the  Central  Government  for  certain purposes  and  upon  State  governments  for  certain  other purposes. [It  is  not  necessary  to  refer  to  the  other provisions of the Act for the purposes of this Case.]      Rule 12  of the  Central Sales  Tax  [Registration  and Turn-Over] Rules,  1957 is the rule made pursuant to Section 6-A among other sections of the Act. Sub-rule (5) of Rule 12 says that  the declaration referred to in sub-section (1) of Section 6-A  shall be  in Form  ‘F". Sub-rule  (6) says that Form ‘F’  referred to  in sub-rule  (5) of Rule 12, shall be the one obtained by the transferee in the State in which the goods covered  by such Form are delivered. Sub-rule (7) says that the  declaration in  Form ‘F’ shall be furnished by the dealer  to   the  prescribed  authority  upto  the  time  of assessment by  the first  assessing authority. Clause (a) of sub-rule (8)  says that  only the person referred to in Rule 3(1)(a) shall be competent to sign the declaration/Form ‘F’. The Rules also prescribe the form in which Form ‘F’ shall be issued . It is in triplicate. It is issued by the prescribed authority and  contains his seal. It has to be signed by the transferee and  is   addressed to  the transferor  affirming that "the  goods transferred  to me/us  as per details below have been  receive  and  duly  accounted  for".  The  person signing it is obligated to mention his status in relation to the transferor.  In other words, Form ‘F’ in the case before us has  to be  issued by  the person in charge of the R.S.O. receiving the  vehicles from  Tamil Nadu  - and  sent to the appellant. The  appellant, in  turn, has to produce the same before his  assessing authority  who  shall  pass  an  order accepting it  is he is satisfied, after making the necessary inquiry that  the facts  stated in  the said  Form are true. Such an  order means that the movement of goods mentioned in the said  Form from  Tamil Nadu to the other State is not by reason of  sale but  a mere transfer - to wit, not an inter- State sale attracting Central sales tax.      By  virtue   of  sub-section  (2)  of  Section  9,  the machinery provisions  under the Tamil Nadu General Sales Tax Act are  imported into the Central Sales Tax Act, as already noticed. Section  16 of  the Tamil  Nadu  Act  provides  for reopening of  assessments. It  would be sufficient to notice sub-section (1)  of Section  16 which  comprises two clauses (a) and (b). The sub-section reads:      "16. Assessment     of      escaped      turnover.-- (1)(a)  Where, for  any      reason, the  whole or  any part  of      the  turnover   of  business  of  a

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    dealer has  escaped  assessment  to      tax, the  assessing authority  may,      subject to  the provisions  of sub-      section (2)  at any  time within  a      period  of   five  years  from  the      expiry of the year to which the tax      relates, determine  to the  best of      its judgments  the  turnover  which      has escaped  assessment and  assess      the tax  payable on  such  turnover      after making such enquiry as it may      consider necessary and after giving      the dealer a reasonable opportunity      to   show    cause   against   such      assessment.      (b)  Where,  for  any  reason,  the      whole or  any part  of the turnover      of business  of a  dealer has  been      assessed at  a rate  lower than the      rate at which it is assessable, the      assessing  authority  may,  at  any      time within  a period of five years      from the  expiry  of  the  year  to      which the  tax  relates,  re-assess      the  tax   due  after  making  such      enquiry   as    it   may   consider      necessary  and   after  giving  the      dealer a  reasonable opportunity to      show   cause   against   such   re-      assessment."             [Emphasis added]      Sub-section (2)  provides that  where the escapement of income is  due  to  wilful  non-disclosure  of  the  dealer, penalty can  also be  levied. Sub-section  (3) says that the power under  section (1)  can be exercised even if the order assessment is the subject-matter of revision or appeal. Sub- section (4),  (5) and  (6) deal with the manner in which the period of  limitation prescribed  by the  section should  be computed. Section  32 confers  upon the  Deputy Commissioner the power  to  revise  the  orders  or  proceedings  of  any subordinate authority  made under  the provisions  specified therein. This power can be exercised suo moto and only where the order  is prejudicial  to the interests of Revenue. This power has  also to  be exercised  within five years from the date of  the order  proposed to  be revised. The contentions urged by  Sri Parasaran  have to be examined in the light of the above  provisions of law and certain decisions, to which he has invited our attention.      We find  it difficult  to agree with Sri Parasaran that Section 6-A  creates a  conclusive presumption.  It is  true that if  the particulars  stated in the declaration/Form ‘F’ are found  to be true, the assessing authority shall pass an order, either  at the time of making of the assessment or at any time  before, that the contents of Form ‘F’ are accepted as true.  On such  order being made, it shall be deemed that the movement  of goods  to which  the form  relates has been occasioned otherwise than as a result of sale. But there are no words  in Section  6-A which  can be  said  to  create  a conclusive presumption  or clothe  the "deemed"  fact with a conclusive character.  All that  it  says  is  that  if  the particulars stated  in Form ‘F’ are true, certain fact shall be presumed  - or shall be or deemed to have taken place, as the case  may be.  It is not possible to agree that the word "deemed" in sub-section (2) of Section 6-A can be understood as creating  a conclusive  presumption nor is it possible to

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agree that  the  fact  "deemed"  is  final  and  conclusive. Section 6-A  merely states  a rule of evidence. It says that where a  dealer claims  that certain  goods have  been moved from one  State  to  another  and  that  such  movement  has occasioned otherwise than as a result of sale, the burden of proving the  same lies  upon him.  Besides creating the said rules of  evidence, the  section also  sets out how the said burden can  be discharged. It can be discharged by producing Form ‘F’  and on  the particulars  stated in  the said  form being found  true on  being enquired  into by  the assessing officer. From  this it  does not  follow that  once order is made accepting  Form ‘F’  as true,  it is not subject to the power of  reopening or  revision contained in Section 16 and 32 of the Tamil Nadu General Sales Tax Act read with Section 92 of  the Central  Sales Tax Act. After all, Section 6-A is also one  of the  provisions in this Act. There is no reason to elevate  it to  a higher  status than  the  rest  of  the provisions. If  it were  the intention  of the Parliament to invest the  "deemed" fact  with the  status of  a conclusive presumption, the  Parliament would  have said so . The Court cannot supply  that  requirement.  Ordinarily  speaking,  an order accepting  - or  rejecting -  Form ‘F’ as true will be passed only  during the assessment proceedings. There may be case where  such an order is passed earlier to the making of the assessment.  Even so, such an order is incidental to and integrally connected  with the assessment of the dealer. The High Court  has characterised  the said provision as a step- in-aid of  assessment. Be  that  as  it  may,  if  the  very assessment is subject to the power of reopening or revision, it is  un-understandable as to how an order under Section 6- A(2) is  not similarly  amenable. The  power to  reopen  can exercise under  Section 16  of the  Tamil Nadu General Sales Tax Act  "where for  any reason the whole or any part of the turnover of  business of  a dealer has escaped assessment to tax". The  power is  very wide,  though it  may be  that  it should not be mechanically or lightly exercised.      Sri Parasaran  has relied  upon  certain  decisions  in support of his contention. The first decision relied upon is in Izhar  Ahmad Khan  v. Union  of India  [1962    Suppl.(3) S.C.R. 235],  which dealt  inter alia  with Section 9 of the Citizenship Act, 1955. Sub-section (1) of Section 9 provides that  if   any  citizen   of  India   voluntarily   acquires citizenship of  another country,  he shall  cease  to  be  a citizen  of   India  with  effect  from  the  date  of  such acquisition. Sub-section  (2)  says  that  if  any  question arises as  to whether,  when or  how any person has acquired citizenship of  another country,  it shall  be determined by such authority  in such  manner and  having regard  to  such rules of  evidence as may be prescribed in that behalf. Rule 30 of  the Rules  framed under  the Act  prescribes  Central Government as  the authority  to decided  the said  question while Rule 3 incorporate a conclusive presumption. According to it,  "fact that  a citizen  of India  has obtained on any date a  passport from  the government  of any  other country shall be conclusive proof of his having voluntarily acquired the citizenship  of  the  country  before  that  date".  The petitioner challenged  the validity  of Rule  3 saying  that Rule 3  was not  a mere  rule of  evidence  but  a  rule  of substantive law  and, therefore,  outside the purview of the delegated authority  conferred by  Section 9(2)  as well  as general  rule-making   power  conferred   upon  the  Central Government by  Section 18.  Indeed, Section  9(2) itself was impugned on  the ground  that it  purported to  deprive  the petitioner of their fundamental right under Article 19(1)(e) of the Constitution. All these contentions were rejected. We

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are unable  to see  how the  ratio of  or discussion in this decision in  this decision  is of  any help to the appellant herein. Rule  3 of  the Citizenship  Act expressly  enacts a conclusive presumption  and that  called for a discussion as to the nature of presumptions, the types of presumptions and their evidentiary value.      Mahant Dharam  Das v.  State of Punjab [1975 (3) S.C.R. 160] dealt with certain provision of the Sikh Gurudwara Act, 1925. Section  3(4) of  the Act  made the declaration in the notification issued  under Section  3(2) that  a  particular institution  is  a  Sikh  Gurudwara  conclusive  and  beyond challenge. The constitutionality of the said provision along with  certain   other  provisions   was  challenged  by  the appellants  before  this  Court.  This  Court  examined  the historical background to the said Act, the scheme of the Act and its  object and repelled the challenge to he validity of its provisions.  The court held that the determination under Section 3(4) is not a judicial determination and that it was designed to  obviate the prospect of a protracted litigation in a  matter involving  the religious  sentiments of a large section  of   sensitive  people  proud  of  their  heritage. Creation of  the said conclusive presumption by the statute, the Court  held, was neither incompetent nor discriminatory. We may  again point out that this decision also dealt with a statutory provision  which expressly  created  a  conclusive presumption unlike the case before us.      Section 29-B  of  the  Uttar  Pradesh  Sales  Tax  Act, considered by  this Court  in Sodhi  Transport v.  State  of Uttar Pradesh  [1986 (1)  S.C.R. 939], provided that "when a vehicle coming  from any  place outside  the State and bound for any  other place  outside the  State passes  through the State, the  driver or other person in charge of such vehicle shall obtain  in the  prescribed manner  a transit pass from the officer  in charge  of the  first check  post or barrier after his entry into the State and deliver it to the officer in charge  of the check post or barrier before his exit from the State, failing which it shall be presumed that the goods carried thereby have been sold within the State by the owner or person  in charge  of the  vehicle". It  is  relevant  to notice that  the said  provision did not create a conclusive presumption but  only a rebuttable presumption of law. Since the said  provision did  not create a conclusive presumption but  permitted  the  person  concerned  to  rebut  the  said presumption by  such evidence,  as he  may place  before the authority, the validity of the said provision was held to be beyond challenge.  This decision, in our opinion, is equally of no help to the appellant herein.      Sri  Parasaran   then  relied   upon  the  decision  in Balabhagas Hulaschand  & Anr.  v. State of Orissa [(1976) 37 S.T.C. 207].  At page  214, Fazl  Ali, J.  set  out  certain situations to  illustrate when does an inter-State sale take place or for that matter it does not. Case No.II reads thus:      "Case No.II.--A, who is a dealer in      State x, agrees to sell goods to B,      but he books the goods from State x      to State  Y in his own name and his      agent in State Y receives the goods      on  behalf  of  A.  Thereafter  the      goods are delivered to B in State Y      and if  B accepts them a sale takes      place. It will be seen that in this      case the  movement of goods is sell      nor is  the movement  occasioned by      the sale.  The seller himself takes      the goods  to State Y and sells the

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    goods there.  This  is,  therefore,      purely  any   internal  sale  which      takes place  in State  Y and  falls      beyond the  purview of section 3(a)      of the  Central Sales  Tax Act  not      being an inter-State sale."      Sri Parasaran  says that  the facts  of his  case  fall squarely  within  the  said  Case  No.II.  It  is,  however, relevant to  notice that  "Case No.II"  in this decision has been explained  in a  later decision of this Court in Sahney Steel and  Press Works Ltd. & Anr. v. Commercial Tax Officer & Ors.  [(1985)  60  S.T.C.  301].  This  is  how  the  said illustrative Case  No.II in  Balabhagas Hulaschand  has been dealt with in Sahney Steel and Press:      "Considerable  reliance   has  been      placed by the petitioners on one of      the  illustrations  given  by  this      Court in  Balabhagas Hulaschand  v.      State of  Orissa [1976]  37 STC 207      (SC) where  case No.II  was set out      as follows:      ‘Case No.II.--A, who is a dealer in      State z, agrees to sell goods to B,      but he books the goods from State x      to State  Y in his own name and his      agent in State Y receives the goods      on  behalf  of  A.  Thereafter  the      goods are delivered to B in State Y      and if  B accepts them a sale takes      place. It  will be  seen that    in      this case  the movement of goods is      neither   in   pursuance   of   the      agreement to  the sell  nor is  the      movement occasioned  by  the  sale.      The seller  himself takes the goods      to State  Y  and  sells  the  goods      there. This  is, therefore,  purely      any internal sale which takes place      in State  Y and  falls  beyond  the      purview  of  section  3(a)  of  the      Central Sales  Tax Act not being an      inter-State sale.’      It   is   not   clear   from   this      illustration whether the goods were      particular   and   specific   goods      earmarked for delivery to the buyer      when they  commenced their movement      from  State   X.  Apparently   not,      because it  is pointed out that the      movement of  the goods  was neither      in pursuance  of the  agreement  to      sell   nor    was   the    movement      occasioned by   the  sale. The case      is distinguishable from the present      one  where  particular  goods  were      manufactured   in    Hyderabad   in      satisfaction of  an order placed by      the  buyer   who  desired  delivery      outside the  State. The goods moved      from  the   registered  office   at      Hyderabad as a result of a covenant      in  the  contract  that  the  goods      manufactured at Hyderabad according      to the specifications stipulated by      the buyer  should be the very goods

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    delivered  to   him   outside   the      State."      Indeed, the  decision in  Sahney  Steel  and  Press  is precisely, what  the Tamil  Nadu State  says is, the factual position in  cases where  notices to  reopen the assessments have been given. The facts of Sahney Steel and Press are the following:  the   petitioner-company  was   engaged  in  the manufacture and  sale of  certain steel  products which were utilised  as  raw-material  for  making  electronic  motors, transformer etc.  The  petitioner’s  registered  office  and factory was  at Hyderabad in Andhra Pradesh. It had branches in Bombay,  Calcutta and  Coimbatore which  were engaged  in effecting  sales  and  looking  after  sales  promotion  and liaison work.  The branches  received orders  from customers within and outside their respective States for the supply of goods conforming  to definite specifications and drawing and advised the  registered office  at Hyderabad. The petitioner thereupon manufactured  the  goods  according  to  the  said design and  specification, at Hyderabad, and despatched them to the respective branches by way of transfer of stock. Such goods were  booked to  "self" and sent by lorries. The goods received by the branches were entered into the stock account of the  branches and  kept in stock for ultimate delivery to the customers.  The customers  examined the  goods  at  such branches and  accepted them.  The branches  raised the bills and received the sale price. They also furnished Form ‘F’ to the registered  office at  Hyderabad. On  these  facts,  the question arose  whether it is an inter-State sale taxable in the State  of Andhra Pradesh or whether it is an intra-State sale in  the other  State where  the goods are delivered. It was held  that it was a case of an inter-State sale and that the movement  of goods  from Hyderabad  in Andhra Pradesh to the other  State was  as a  result of  an on incident of the contract of  sale. Of  course, it was a case where the goods were manufactured  according to the design and specification supplied by  customers and them despatched from Hyderabad to such other   State.  Be that  as it  may, since  we are  not concerned with  the facts in these appeals, it is not for us to say  what is  the factual  situation in  the  matter  now pending before  the assessing  authorities and  what is  the proper inference to be drawn therefrom.      The last  decision relied  upon by  Sri Parasaran is in Chunni Lal  Parshadi  Lal  v.  Commissioner  of  Sales  Tax, Lucknow [(1986)  62 S.T.C.  112]. Where  a dealer  sold  the goods to  another registered  dealer and  if the  purchasing dealer furnished the certificate in Form III-A [which  means that the  goods purchased  were intended  for resale  in the same condition] the selling dealer was not liable to pay tax under the  Uttar Pradesh  Sale Tax  Act. In  that case,  the purchasing dealer furnished Form III-A which was produced by the assessee-dealer  and on  that basis,  his sale  was  not taxed. Subsequently, it was found that the purchasing dealer did not  resell those goods but used them otherwise. On that basis, the assessment of the selling dealer was sought to be reopened. It  was held  by this  Court that the reopening of assessment was  incompetent in  law inasmuch as there was no finding that  there was collusion between the selling dealer and the  purchasing dealer.  It was  held that the mere fact that the  purchasing dealer.  It was held that the mere fact that the  purchasing dealer  is subsequently  found to  have issued Form III-A wrongly does not confer upon the assessing authority the  jurisdiction to  reopen the assessment of the selling dealer. The principle of this decision, we find, has no analogy to the situation in the appeals before us.      We are, therefore, of the opinion that Section 6-A does

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not create  a  conclusive  presumption  and  that  an  order accepting Form  ‘F’, whether passed during the assessment or at any  point earlier  thereto, is   ultimately  a part  and parcel of  the order of assessment. Its amenability to power of reopening and revision depends upon the provisions of the concerned State  sales tax  enactment by  virtue of  Section 9(2). It  is also  not possible to agree that an order under Section 6-A(2)  has an  independent existence.  It does  not have. An order refusing to accept Form ‘F’ may or may not be appealable independently  depending upon  the provisions  of the local sales tax enactment but it is certainly capable of being questioned  in the  appeal preferred against the order of  assessment  -  for  the  simple  reason  that  an  order accepting or  rejecting Form  ‘F’ does affect the quantum of turnover taxable  under the  Act. So  far as  the  power  of reopening is  concerned, it  is enough for us to say that if the order(s) accepting Form(s) ‘F’ is sought to be reopened, it can  be done  as part of reopening of assessment or , may be, independently  - that  depends upon  the language of the relevant provision  in the local sales tax enactment. In the present case,  the provision  relevant is  Section 16 of the Tamil Nadu  General Sales  Tax Act.  From  the  language  of Section 16,  it appears that it may be possible to reopen an order accepting  Form ‘F’ as true without, at the same time, reopening the  assessment. Even  so, it must be noticed that such a reopening necessarily leads to revisions/modification of the  assessment order.  It is equally obvious that if the reopening is  confined to  the order  accepting Form  ‘F’ as true, the  inquiry shall be confined to the matters relevant thereto. Whether  that power  has been  exercised validly in these case  does not  fall for  our consideration. Hence, no opinion need  be expressed on that aspect. The fact that the assessments are sought to be reopened only in respect of the turnover relating  to sale  of vehicles  to State  Transport Undertakings in  various States  but  not  with  respect  to turnover relating  to sales  to persons  other than  S.T.Us. cannot be a ground to invalidate the proceedings taken.      Sri Parasaran  laid stress upon the meaning and content of Section 4 of the Central Sales Tax Act. He submitted that the law  is different in the case of specific or ascertained goods and  unascertained or  future goods.  According to the principles of  this section, Sri Parasaran says, the sale of vehicles must  be held  to have  taken place in the State in which they are delivered [to the S.T.U. concerned]. But this is again  a question  of fact  upon which  no opinion can be expressed in these proceedings. Whether the contract of sale was in  respect of  specific or ascertained goods or whether it was in respect of unascertained or future goods and if it is the  latter, when  did the  appropriation of the goods to the contract  of sale  take place  are all questions of fact which do  not arise  for consideration in these appeals. Sri Parasaran says that even according to the show-cause notices issued by the Tamil Nadu authorities under Section 16 of the Tamil Nadu  General Sale  Tax Act  read with Section 9(2) of the Central  Sales Tax  Act, there is only one sale, namely, the sale  to the  S.T.U. in  the other State concerned. This sale, according  to the  learned counsel, has taken place in the other  State. May  be or  may not  be According  to  the respondents, the sale that has taken place is an inter-State sale. This is yet again a question of fact.      Having thus  disposed of  the main  contentions of  the appellant, we must yet say that the situation the appellant, we must  yet say  that the situation the appellant is facing is no  doubt real, which may indeed put it in good amount of jeopardy. If  the vehicles  which have  been sold  to,  say,

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Maharashtra S.T.U.  have been moved to the appellant’s R.S.O in Maharashtra  and that  R.S.O. has  issued Form ‘F’ [which Form ‘F’  has been  accepted by  the Tamil  Nadu authorities during the  course of  assessment of  the appellant  for the relevant    assessment     year]    reopening    the    said assessment/orders accepting  Form  ‘F’  after  a  number  of years, seeking  to treat  the  said  movement  of  goods  as consequent upon  or incidental  to contract(s) of sale [and, therefore, amounting  to inter-State  sale  taxable  in  the State of  Tamil Nadu]  does present  the  appellant  with  a serious problem inasmuch as it says that it has already paid tax on sale of said vehicles in Maharashtra under the Bombay Sale Tax  Act. Sri  Parasaran submits  that unless the sales are effected  within the purchasing State, those States [and their  S.T.Us.]   are  not  willing  to  purchase  from  the appellant. Learned  counsel suggests  that inasmuch  as  the State governments,  generally  speaking,  are  strapped  for funds and since sales tax is the major source of revenue for all of  them, every  State is  trying to  derive the maximum revenue on  this account  and because  the Central sales tax levied and collected in a State ultimately goes back to that State,  the  Tamil  Nadu  State  is  anxious  to  treat  the consignment/transfer of  vehicles as  inter-State sales. The learned  counsel   bitterly  complains  about  the  attitude adopted by  the Sale  Tax authorities  in  Tamil  Nadu  who, according  to   him,  are   pre-determined  to   treat   the transactions as  inter-State  sales  and  levy  tax  thereon ignoring the  true facts  and the  correct legal  situation. While we  do not  express any  opinion on the correctness or otherwise of  this submission,  this case brings to the fore the  advisability or necessity of having a Central mechanism which would decide once for all questions of this nature. We may elucidate  the point.  The Maharashtra  State has levied tax  upon   the  sale   of  vehicles  by  the  appellant  to Maharashtra S.T.U.  under the  Bombay Sales Tax Act treating them as  sales effected  in the  State of Maharashtra. Those orders have  become final.  Now, the  Tamil Nadu authorities are seeking  to reopen the assessment and proposing to treat the said movement of vehicles from Tamil Nadu to Maharashtra as inter-State  sales. Suppose,  tomorrow it  is held by the Tamil Nadu  authorities that  they were  indeed  inter-State sales and  tax is  levied and  collected by  the Tamil  Nadu State,  can  the  appellant  go  and  legitimately  ask  the Maharashtra authorities  to refund the tax paid by it on the sale of  vehicles in  Maharashtra? It  may not be able to do so, as  the law  now stands. The Maharashtra authorities may well tell  the appellant that those orders have become final and their  orders cannot  be reopened because authorities of another State  have taken  a contrary  view. We are not sure whether it  is possible to stipulate that while deciding the question whether  the said  transfer of vehicles constitutes inter-State sale  or not,  the Tamil  Nadu authorities shall give  notice   to,  implead   the  Maharashtra   Sales   Tax authorities, hear  them and  decide so  that their  decision would be  binding upon  the Maharashtra authorities. The law as now in force does not appear to permit such a course more particularly in  a situation where the orders of Maharashtra Sales Tax  authorities have  become final,  as stated above. The Maharashtra authorities may well refuse to appear before the  Tamil   Nadu  authorities.  They  may  not  accept  the jurisdiction of Tamil Nadu authorities over them or over the order passed  by them. They may also refuse to submit to the jurisdiction of  the Tamil Nadu authorities. On this aspect, we must, however, notice an observation in a recent decision of this  Court in  Bharat Heavy Electricals Limited v. Union

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of India  [1996  (4)  S.C.C.  230],  wherein  the  following observation occurs at page 239:      "If a dispute arises in which State      is the  tax lawfully  leviable, the      authorities under  the Act have got      to decide  it. If, in a given case,      an   assessee    says   that    the      particular  transaction   which  is      sought to be taxed in State ‘A’ has      already been  taxed in  State  ‘B’,      nothing    prevents     him    from      impleading State  ‘B’ in proceeding      in State  ‘A’ and  have the  matter      decided  in  the  presence  of  all      parties. It must be remembered that      while  acting   under  the  Central      Government and not as the machinery      of the  State Government. This view      of ours get reinforced if one keeps      the provisions in Section 8(2-A) of      the Central Sales Tax Act in view."      The said  observation, no  doubt, projects  a point  of view, but it has to be understood in the particular facts of that case.  In that case, orders of Sales Tax authorities of any particular  State had  not become  final. When more than one State  sought to  tax the  same transaction on different bases, B.H.E.L. came to this Court by way of a writ petition under Article  32 of the Constitution and certain directions were made  by this  Court. Moreover,  the matter  there  was decided by  the High Court and the various State governments who were  impleaded as  respondents did  not object  to  the jurisdiction of  the High  Court to  decide  the  dispute  - dispute as  to the  true nature  of the  transaction and who should tax  it. In  this matter, the situation is different. The orders  of several  State authorities  have become final and there  is no way provided by the Act following which the finality of  those orders  can be undone and the question of the true  nature of  the  transaction  decided  afresh  with participation of  the State  authorities of both the States. There is  yet another  fact, viz., the State governments are objecting  to  the  jurisdiction  of  Tamil  Nadu  Sale  Tax authorities to summon them and decide the question which may require them  to revise  own orders.  This situation did not arise in B.H.E.L. It is in this situation that the idea of a Central mechanism  has come  to  fore.  This  does  not,  of course, mean  that this  court cannot  devise an appropriate method to  meet the interests of justice. It can Appropriate directions can  always be given to both the concerned States to submit  to the  jurisdiction of the particular designated Court or  Tribunal which will decide the questions regarding the true  nature of  the transaction  after hearing  all the affected parties.  The fact that those orders of authorities in certain  proceedings have  become final  may not stand in the way  of this  Court giving  appropriate directions under Article 32  or 136  or 142,  as the  case may  be, but  that situation has  not yet  arisen in  this case.  Let the Tamil Nadu assessing  authorities first  decide the  matter before them. Thereafter,  if the  orders are against the appellant, were permit  the appellant  to file  the appeal (s) directly before the  Tribunal. If  the Tribunal  decides in favour of the appellant,  no further  question would  arise. But if it decides against  the appellant, to wit, if it holds that the scale of vehicles to the S.T.Us. of various State are inter- State sales   and if it is found that those very transaction have also  been taxed  as intra-State  sales under the State

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sales tax  enactments of  another State,  that would  be the stage for considering the advisability of giving appropriate directions of  the nature  contemplated above by the Court - that is, of course, if by that time, no central mechanism to meet such a situation comes into existence.      In the  interest of inter-State trade and commerce, the suggestion for  creation of  a central  mechanism to  decide such disputes  - which  are really  in nature of inter-State disputes -  may be  well  worth  considering;  every  dealer affected may not be in a position to approach this Court for appropriate directions. it is for the Government of India to consider this  aspect and  take necessary  decision in  that behalf.      In the  light of the above discussion, we dismiss these appeals. If  the assessing  authorities decide  against  the appellant, it shall be open to them to file appeal(s) before the Tribunal  directly. [This  direction is given to shorten the litigation and in the interests of justice.] If and when the Tribunal decides against the appellant, it shall be open to the  appellant to  approach this  Court  for  appropriate directions. In  the circumstances of the case, it is further directed that  in case  the Tamil  Nadu Sale  Tax  Appellant Tribunal comes  to the  conclusion that  the transactions in question are  inter-State sales upon which Central sales tax is leviable  in the  State of Tamil Nadu, the State of Tamil Nadu shall  not enforce  their demand  for a period of eight weeks from  the  date  of  the  decision  of  the  Tribunal. Further, till the issue is decided by the Sale Tax Appellate Tribunal, no  Central sales  tax shall  be demanded from the appellant, provided  it is established by the appellant that in respect of the transaction, the appellant has paid tax in another State  treating it  as an  intra-State sale  in that other State.      The appeals are accordingly dismissed. No Costs.