1. This application for revision filed before the Rajasthan High Court was transferred to this Tribunal in terms of the provisions of the Rajasthan Taxation Tribunal Act, 1995. It arises in a matter under the Central Sales Tax Act, 1956 ("the CST Act") and is directed against the judgment dated July 3, 1993 in Appeal No. 36/91/ST/Alwar, of the Rajasthan Sales Tax Tribunal (as "the Rajasthan Tax Board" hereinafter, referred to as "the Board", was then known). The Board had by its impugned judgment accepted the appeal of the present non-petitioner-dealer and set aside the order of the first appellate authority dated February 23, 1990 upholding the order dated August 17, 1990 of the assessing authority (AA) made under Section 9, the CST Act read with Section 16(1)(i) of the Rajasthan Sales Tax Act, 1954 (the RST Act), inter alia, holding that certain transactions claimed by the dealer to be branch transfers were actually inter-State sales, and, therefore, levied tax under the CST Act, interest under Section 11B, RST Act, and penalty under Section I6(l)(i), RST Act. The order of the AA to that extent was also set aside.
2. The facts giving rise to the application for revision are that the dealer is registered under the CST and RST Acts. It manufactures thinner and spirit at its factory in Bhiwadi, District Alwar, Rajasthan. Its head office is in New Delhi. On June 22, 1988 the AA checked vehicle No. DBL 2778 at the Tabu Road Check-post, Bhiwadi. It was found to be carrying 20 drums of thinner which as per the goods receipt and the declaration in form S.T. 18C accompanying the goods were valued at Rs. 38,000 and were in the course of branch transfer to the dealer's head office in New Delhi. The dealer's salesman who was also travelling in the vehicle was found to be carrying two bills of the same date, i.e., June 22, 1988 in the name of two different purchasers of Delhi one covering five drums of thinner and the other three drums. These bills for a total value of Rs. 17,250 bore the signatures of the sales manager of the dealer's Delhi office. The salesman is said to have informed the AA that the drums covered by these bills were to be supplied directly to the parties concerned in Delhi. The AA took it that the transaction in eight of the twenty drums found in the vehicle were inter-State sales which was incorrectly and wrongfully being represented as branch transfers.
3. At the time of checking five more bills were found with the salesman. These bore various dates and in all covered twenty drums of thinner in the name of various parties in Delhi purportedly issued by the Delhi office and were for a total value of Rs. 34,050.
4. The AA subsequently checked the books of the dealer at its premises during the course of which another bill came to light which was for ten drums of thinner originally made out in the name of a purchaser in Delhi which had been overwritten to show the dealer's head office in Delhi as the purchaser.
5. The dealer was asked to explain. The AA considered the dealer's explanation to be unsatisfactory and took the transactions in the eight drums found in transit, the twenty drums covered by the five bills found with the salesman and the ten drums covered by the overwritten bill to be in the course of inter-State sales and not branch transfers and in the course of regular assessment proceedings by an order dated August 17, 1990 levied tax under the CST Act at 14.5 per cent on the value of Rs. 69,800 of Rs. 10,122 and penalty under Section 16(l)(i), RST Act of Rs. 15,283. The assessment order was for the period July 1, 1987 to March 31, 1989 (1988-89) and covered other transactions in the period in question too which were either disclosed as inter-State sales and were accepted as such by the AA or were accepted by the AA to be branch transfers duly supported by declarations in form "F". The other details of the assessment are not relevant for the purposes of the instant application and need not detain us.
6. The tax levied and the penalty imposed, referred to above were maintained by the first appellate authority and set aside by the second appellate authority, namely, the Board by its impugned order. It was contended by the dealer that the AA had obtained the statement from the salesman at the time of the checking of the vehicle under duress. The Board faulted the AA for not having done further enquiries at the Delhi end in the absence of which the inter-State sales could not be said to have been proved.
7. We have heard the learned counsel for the parties and considered the material on record.
8. It is settled law that once a dealer claims that he is not liable to pay tax under the CST 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 by reason of sale, the burden of proving that the movement of goods was so occasioned shall be on that dealer. Section 6A, CST Act in terms says as much. The dealer may at his option furnish a declaration in form "F". The burden of proof is not automatically discharged even in that case. The point to note' is that the law places the burden of proof on the dealer and not on the Revenue as done by the Board.
9. It is not in dispute that the statement of the salesman, who can be said to be privy to the mode of sales adopted by the dealer and the manner in which they were represented in the books were to the effect that the bills in question found on him as well eight of the drums in transit were for goods to be supplied directly to purchasers in Delhi from the branch in Rajasthan. That is to say they were inter-State sales.
10. There is nothing on record to show that the statement of the salesman was obtained under duress.
11. Even if the statement of the salesman is disregarded there still would remain certain unanswered questions. If the sales were effected from Delhi to purchasers there after they were received on branch transfer from Bhiwadi what were the bills ostensibly made out from the Delhi office doing on the person of the salesman en route from Bhiwadi to Delhi Admittedly, one of them even bore the date June 22, 1988--the date on which the vehicle was checked. That the bill was issued from Delhi on that day to be sent to Bhiwadi only to be brought back that very day was all to what purpose if it was not to make inter-State sales appear to be branch transfers The dealer has not been able to clear the mystery of the itinerant bills. Admittedly, further, it is a matter of record that among the bills found with the salesman there was a discrepancy in as much as a bill of a later serial number was issued on an earlier date than one which occurred earlier in the series : bill No. 3843 was dated June 21, 1988 while bills Nos.
3899, 3902 and 3903 were dated June 19, 1988, June 20, 1988 and June 20, 1988 respectively. This discrepancy too remained unexplained.
12. Similarly, if the identity of the ultimate purchaser is not known at the time of effecting the transfer how could its name appear for it to be over written.
13. It is settled-law that the dealer being a person in law its head office and branch are not separate juridical personalities and if the goods moved directly from the dealer's factory to the purchaser in Delhi it would be in the course of inter-State sale and the intervention of the head office in Delhi for the purposes of billing and receipt of payment would be to no avail and would not make the movement of the goods into one in the course of branch transfer. This is precisely the import of the Supreme Court's rulings in English Electric Company of India Ltd. v. Deputy Commercial Tax Officer  38 STC 475 (SC) and in Sahney Steel and Press Works Ltd. v. Commercial Tax Officer  60 STC 301 (SC). This is precisely what appears to have happened in the cases in hand. The head office received the orders in the cases in question and did the billing. The goods in question thereupon moved directly from the factory to the purchaser in Delhi in fulfilment of the order. The presence of the bills issued by the Delhi office with the salesman can have no other explanation. At any rate the dealer was not able to provide any other more plausible explanation. In the circumstances the AA had no option but to take the transactions in question to be inter-State sales exigible to tax under the CST Act in Rajasthan and tax them accordingly and for seeking to show them as branch transfers, impose penalty.
14. All in all the dealer was not able to discharge the burden of proof placed on it by law to show that the transactions in question were not liable to be taxed, under the CST Act as inter-State sales. The Board cannot, therefore, be said to have determined the matter correctly.
15. The application for revision is accepted and the impugned order of the Board is set aside. No order as to costs.