THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE SUDDALA CHALAPATHI RAO Tax Revision Case No.127 of 2009 ORDER: (per Hon’ble Sri Justice P.SAM KOSHY The instant Tax Revision Case has been filed by the petitioner under Section 22(1) read with Rule 10 of the Andhra Pradesh General Sales Tax Act, 1957 assailing the order dated 23.01.2009 in Tribunal Appeal No.679 of 2002, passed by the Sales Tax Appellate Tribunal, Andhra Pradesh, at Hyderabad (for short, ‘the impugned order’)

2. Heard Mr. T. Chaitanya Kiran, learned Additional Government Pleader, appearing on behalf of Mr. Swaroop Oorilla, learned Special Government Pleader for Commercial Tax, for the petitioner; and Mr. Tarun Chadha, learned counsel appearing on behalf of Mr.

Karthik Ramana Puttamreddy, learned counsel for the respondent.

3. Vide the impugned order, the Tribunal allowed the appeal preferred by the respondent and set aside the order passed by the Appellate Deputy Commissioner (Commercial Tax), Punjagutta Division, at Hyderabad in Appeal No.P/207/2000-2001, dated 07.05.2001 while confirming the order passed by the Commercial Tax Officer, S.D. Road Circle, Secunderabad, vide assessment order in Assessment No.2114/96-97/CST, dated 07.12.1999.

4. The point which arises for consideration in the instant Revision is whether the petitioner-State had been able to make out a case to show that the respondent-Assessee was able to discharge its liability so far as payment of tax at a higher rate is concerned, and whether there was any sale made at the hands of respondent-Assessee.

5. The facts in nutshell are that the respondent-Assessee is a Government undertaking. The respondent-Assessee had purchased certain petroleum products (motor spirit) from M/s. Indian Oil Corporation Limited, at Visakhapatnam. The respondent was required to transfer the said product from Visakhapatnam to Cuttak, Odisha. While doing so, the respondent had paid excise duty for the goods purchased from M/s. Indian Oil Corporation Limited, at Visakhapatnam amounting to Rs.26,25,739/-. But the Commercial Tax Officer, Secunderabad, took a view that since the amount of excise duty paid by the respondent on the taxable turnover to the tune of Rs.26,25,739/- as ‘Excise Duty’ for the release of the goods to be transported to Cuttak, Odisha, was not covered by ‘C’-Forms therefore the taxable turnover was liable to be taxed @ 30.55% instead of 4%.

6. Aggrieved by the order passed by the Commercial Tax Officer, Secunderabad, vide assessment order in Assessment No.2114/96- 97/CST, dated 07.12.1999. The said order of the Commercial Tax Officer was subjected to challenge before the Deputy Commissioner of Appeals, who too in a mechanical manner taking the same view that of the Commercial Tax Officer, rejected the appeal vide order dated 07.05.2001, and which was subsequently challenged by the respondent-Assessee before the Tribunal vide T.A.No.679 of 2002.

7. In the said appeal, the respondent-Assessee had taken a categorical stand that in fact the respondent-Assessee was not the seller of the goods but was in fact a purchaser of the goods, viz., motor spirit from M/s. Indian Oil Corporation Ltd.; and in the process of getting the goods released from the Bonded Warehouse, the respondent-Assessee had paid the excise duty amounting to Rs.26,25,739/-. It was also categorically pleaded before the Tribunal that in fact the respondent-Assessee was the purchaser and M/s. Indian Oil Corporation Ltd. was the actual seller. Thus, there was no inter-State sale as such made by the respondent-Assessee which would require submission of ‘C’-Forms for getting the tax payable at a concessional rate of 4%.

8. Perusal of the record would indicate that except for the material showing that the respondent-Assessee having paid excise duty on the taxable turnover of Rs.26,25,739/-, there does not seem to be any other material which could be perused by the Commercial Tax Officer at the first instance and also the Deputy Commi