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2008 (10) TMI 613 - HC - VAT and Sales TaxWhether the Tribunal have not held that the transaction in question is one coming under section 5(2) of the CST Act more so in view of the judgment of the Supreme Court in State of Maharashtra v. Embee Corporation reported in 1997 (8) TMI 443 - SUPREME COURT OF INDIA ? Whether the Tribunal have not cancelled the levy of penalty imposed under section 29A(4) read with rule 35A(4)(b) of the Kerala General Sales Tax Rules 1963 after holding that the transaction under question is one coming under section 5(2) of the CST Act and hence exempt? Held that - The Appellate Tribunal while concurring with the findings of the first appellate authority has observed that since ONGC has not come into the picture with the foreign supplier at any time during the course of import it cannot be a transaction under section 5(2) of the CST Act. The Tribunal has further observed that the petitioner had attempted to manipulate the records to establish that the transactions are well within the scope of section 5(2) of the CST Act. This in our view is mere presumption and surmise by the Tribunal and not supported by any material. The transaction matrix shows that the transaction between the parties are inextricably linked with each other with each knowing their part of the transaction. We do not see any attempt of manipulation since the two customs-duty-paid documents establish that the goods imported are the same goods ordered by BPL as a back-to-back order of ONGC. All the other so-called mistakes do not appear to affect the true nature of the transaction being one falling under section 5(2) of the CST Act. Revision petition filed by the assessee requires to be allowed and accordingly it is allowed and the impugned orders passed by the authorities under the Act and the Appellate Tribunal is set aside.
Issues Involved:
1. Whether the transaction in question falls under section 5(2) of the CST Act. 2. Whether the levy of penalty under section 29A(4) read with rule 35A(4)(b) of the Kerala General Sales Tax Rules, 1963, is justified. Issue-Wise Detailed Analysis: 1. Whether the transaction in question falls under section 5(2) of the CST Act: The petitioner, a registered dealer under the Kerala General Sales Tax Act, 1963, and the Central Sales Tax Act, 1956, imported goods for ONGC, Karaikkal. The goods were detained by the Sales Tax Inspector during transportation. The petitioner argued that the transaction falls under section 5(2) of the CST Act, which exempts transactions in the course of import. The Tribunal and the first appellate authority rejected this claim, stating that the transaction did not meet the criteria under section 5(2). The petitioner contended that the transaction was complete only after installation and commissioning, and thus, there was no evasion of tax in Kerala. Section 5(2) of the CST Act requires that the sale or purchase either occasions the import or is effected by transfer of documents before the goods cross customs frontiers. The court examined whether there was an inextricable link between the purchase order from ONGC, the order placed by BPL with Nokia, and the dispatch by Nokia. The court found a clear nexus, indicating that the import was incidental to the contract of sale, thus qualifying under section 5(2). The court noted that the purchase order from ONGC specified the import of goods from Nokia, Finland, and the goods were to the specifications of ONGC. This indicated that BPL could not divert the goods to any other customer, reinforcing the claim that the transaction falls under section 5(2). The first appellate authority's reasons for rejecting the claim were found to be fallacious. The court clarified that the delivery of goods to BPL did not negate the fact that the transaction was in the course of import. The court also dismissed the requirement of direct privity of contract between ONGC and the foreign seller as unnecessary under section 5(2). The court concluded that the transaction met the criteria under section 5(2) of the CST Act, as the movement of goods from Nokia, Finland, was occasioned by ONGC's order to BPL. Thus, the transaction was deemed to have taken place in the course of import. 2. Whether the levy of penalty under section 29A(4) read with rule 35A(4)(b) of the Kerala General Sales Tax Rules, 1963, is justified: The Sales Tax Officer imposed a penalty of Rs. 18,97,000, later reduced to Rs. 6,06,982 by the Appellate Commissioner, for alleged evasion of tax. The petitioner argued that the penalty was unwarranted as there was no attempt to evade tax, and the transaction fell under section 5(2) of the CST Act. The court noted that for a penalty under section 29A(4) of the KGST Act, there must be an attempt to evade tax. The court found that the authorities' claim of manipulation and evasion was based on mere presumption and not supported by material evidence. The customs documents established that the goods imported were the same as those ordered by ONGC, negating the claim of evasion. The court held that the transaction was in the course of import and exempt under section 5(2) of the CST Act, and therefore, no penalty could be levied under the KGST Act. Conclusion: The revision petition filed by the assessee was allowed, and the impugned orders passed by the authorities and the Appellate Tribunal were set aside. The court directed the parties to bear their own costs.
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