1973 (12) TMI 77 - SC - VAT and Sales Tax

Whether, on the basis of annexure P-1 order, respondent No. 4 was entitled to deduct Rs. 60,780 from the amount due to the petitioner in respect of pending bills? Whether the claim of the respondents to recover a further sum of Rs. 2,35,130.01 from the petitioner is justified? Held that - Appeal allowed There was no obligation under the contracts on the part of the DGS & D to procure import licences for the petitioner. On the other hand, the recommendation for import licence made by the DGS & D did not carry with it any imperative obligation upon the Chief Controller of Imports and Exports to issue the import licence. Though under the contract the DGS & D undertook to provide all facilities for the import of the goods for fulfilling the contracts including an Import Recommendation Certificate, there was no absolute obligation on the DGS & D to procure these facilities. And, it was the obligation of the petitioner to obtain the import licence. Therefore, even if the contracts envisaged the import of goods and their supply to the DGS & D from out of the goods imported, it did not follow that the movement of the goods in the course of import was occasioned by the contracts of sale by the petitioner with the DGS & D

Issues Involved:
1. Whether respondent No. 4 was entitled to deduct Rs. 60,780 from the amount due to the petitioner in respect of pending bills.
2. Whether the claim of the respondents to recover a further sum of Rs. 2,35,130.01 from the petitioner is justified.

Issue-Wise Detailed Analysis:

1. Deduction of Rs. 60,780 from Pending Bills:
The judgment addresses the entitlement of respondent No. 4 to deduct Rs. 60,780 from the amount due to the petitioner. The petitioner, a company incorporated under the Indian Companies Act, 1913, engaged in importing and dealing non-ferrous metals, had its sales to the Directorate General of Supplies and Disposals (DGS & D) subjected to a deduction based on an order (annexure P-1) issued by respondent No. 2. This order directed that sales tax should not be allowed in respect of supplies specifically imported against licenses issued by the Chief Controller of Imports and Exports for contracts placed by the DGS & D. The petitioner contended that the sales to DGS & D were separate and distinct from the contracts of purchase made with foreign sellers, and thus, the decision in Khosla case [1966] 17 S.T.C. 473 (S.C.); [1966] 3 S.C.R. 352, which exempted sales tax on transactions occasioning the movement of goods in the course of import, was not applicable. The court held that the sales by the petitioner to the DGS & D did not occasion the import; rather, it was the purchases from foreign sellers that occasioned the import. Consequently, the deduction of Rs. 60,780 was not justified.

2. Recovery of Rs. 2,35,130.01:
The second issue concerns the respondents' claim to recover Rs. 2,35,130.01 from the petitioner, being the amount paid as sales tax in respect of already executed contracts. The petitioner approached the West Bengal sales tax authorities and filed revised returns, claiming refunds based on the judgment in the Khosla case. However, the authorities determined that there were two sales involved: the sale to the petitioner by foreign sellers and the sale by the petitioner to the DGS & D. They concluded that tax was exigible on the sales by the petitioner to the DGS & D, as there was no privity of contract between the DGS & D and the foreign sellers. The court upheld this view, stating that the movement of goods in the course of import was occasioned by the contracts of purchase with foreign sellers, not by the sales to the DGS & D. Therefore, the claim to recover Rs. 2,35,130.01 from the petitioner was not justified.

Conclusion:
The court quashed annexure P-1 order as it applied to the petitioners and allowed the writ petitions with costs, concluding that the sales to the DGS & D did not occasion the import of goods and hence, the deductions and recovery claims were not justified. The petitions were allowed.

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