Pursuant to the aforesaid order, the respondent has filed an additional counter affidavit, in which he has emphasized the desirability of remanding the matter back to the disciplinary authority for re-determination of the matter. He has emphasized that failure to supply the enquiry report to the delinquent deprives him of making a proper representation to the disciplinary authority, before that authority arrives at its own findings with regard to the guilt or otherwise of an employee. This admittedly not having been done, clearly the respondent was prejudiced in submitting his defence. Even if this Court concludes not to remand the matter back to the disciplinary authority, at least it has to be remanded back to the High Court. He has stated that a number of points were raised before the High Court which have not been considered on merits, as the High Court decided the writ petition only on the ground of non-furnishing of the enquiry report. Since the enquiry officer and the disciplinary authority had concluded that some of the charges have been partially proved and others completely proved it was necessary to supply the findings of the enquiry reports. Only on knowing the reasoning of the enquiry officer, could the respondent give an effective explanation. It is further pointed out that with regard to the charges relating to Maharajganj, the entire amount has been recovered. This fact is noticed by the disciplinary authority. But quite illegally, it still proceeded to impose punishment, on the ground of proved misconduct. Since the disciplinary authority arrived at the decision on the basis of charges which were partially completely proved it was not possible to defend, during personal hearings. According to the respondent, this was state by him at the personal hearing, but it was ignored. In fact the disciplinary authority was adamant to punish the respondent. All these issues could have been highlighted if the High Court had decided the writ petition on merits. Therefore, matter needs to be remanded back to the High Court for a decision on merits, on all the issues raised by the respondent. In our opinion, the aforesaid grievances of the respondent are without any factual basis. The petitioner has placed on the record of this Court the translated copy of the charge-sheet, reply of the respondent to the chargesheet. It is true that in the instant case, there is no agreement available on record to indicate that the purchase was made for the purpose of export. In the absence of the said document, it is not possible to specifically state as to whether it was clear that the sale or purchase between the parties i.e. the dealer and the purchaser was inextricably linked with the export of goods. It is only when a claim is established, the claim u/s 5(3) of the CST Act would be justified. At the time of auction sale when the appellant purchased the tea from the dealer, there is nothing on record to show that a definite stand was taken by the purchaser that the purchase of tea was for the purpose of occasioning a export for which an agreement has been entered into. Since, no such claim was made at that stage, sales tax was realized which was paid to the government by the dealer. However, there is a clear finding recorded by the assessing authority that the export documents were verified by him with the accounts from which it is indicated that the entire exports were effected pursuant to the prior contract or prior orders of the foreign buyers and that the export sales are supported by bills of lading export invoices and such other valid documents. In the light of the said findings, the assessing authority allowed the exemption, clearly holding that the claim for exemption was genuine. The next two authorities, namely, the appellate authority and the Tribunal, agree with the said findings and there does not appear to be any serious challenge to the said findings before the said two authorities. So far as the refund is concerned, the assessing authority, the appellate authority as also the Appellate Tribunal have clearly recorded a finding that when a dealer has paid the tax in excess of what is due from him, it has to be refunded to the dealer in as much as the dealer is entitled to receive a refund, if tax is paid in excess of what was due from him. Referring to the provisions of Section 44 of the KGST Act, the Deputy Commissioner (Appeals) i.e. appellate authority, also held that it is the seller or the dealer on whom the burden lies to prove that the sale is for fulfilling an order of the foreign buyer, since section 5(3) refers only to the foreign buyer. (800)
