2021 (1) TMI 501 - SC - VAT and Sales Tax

Levy of CST - Benefit of Concessional rate of tax - sales in the course of import or inter-State sales - grant of time to the appellant to produce the prescribed C-Forms to the assessing authority - whether the sales in question took place in the course of the import of the goods into the territory of India and qualify for exemption under Section 5(2) of the CST Act? HELD THAT - The basic principles for determining as to when a sale or purchase of goods takes place in the course of import or export are contained in Section 5 of the CST Act. As per sub-section (1) of Section 5, a sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India. Under sub-section (2), a sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India. Having expounded on the legal position, the Court examined the facts of the case and held that the case fell under the fourth principle aforesaid when the petitioner, pursuant to the earlier contract with the Government, delivered the shipping documents including the bill of lading to the Government against payment when the goods were on high seas. Hence, it was held that the sales in question took place in the course of imports of goods into India. The Court also scrutinized the terms of contract to ascertain whether they disclosed any intention of the parties that notwithstanding the delivery of bills of lading against payment, the property in the goods should not pass to the Government and held, after scrutiny of all the terms of contract that they did not indicate any such intention. Though the scrutiny and analysis of the terms of contract relates to the facts of that case only but worthwhile it would be to reproduce the same to indicate that ultimately, on the facts, the Court found that the sale took place in the course of import. It is but apparent that that while bringing anything into India from a place outside India is generally regarded as import and the imported goods are those goods which are brought into India from a place outside but, when the goods are cleared for home consumption, they are no longer imported goods for the purpose of the Customs Act. Significantly, in the process of importation, the importer, in relation to any goods, includes any owner or any other person holding himself to be the importer but, only between the time of their importation and their clearance for home consumption - the High Court has rightly said that this definition of importer cannot be used to usurp the identity of an importer from the person who filed the bill of entry. In other words, the person in whose name the bill of entry is filed does not cease to be an importer and, if that person claims to be not the owner or importer, the ouns would be heavy on him to establish that someone else is the owner or importer of goods. The fact of the matter remains that even though the appellant has suggested that the bills of lading were endorsed in favour of Radha (and other end-buyers) when goods were on high seas but this bald assertion is not corroborated by any of the official documents which form the part of the process of importation, warehousing and clearance of goods. On the contrary, the High Court has pointed out as illustration the details of one of the bills of entry, which distinctively gave out all the particulars of IGM, the invoice, the value of cargo, etc. and the High Court has found that in the bill of entry, the name of appellant alone was shown as the importer who cleared the goods from customs with the assistance of the Customs House Agent. In the given set of facts, if the goods were at all sold to Radha (and other end-buyers) on high seas, the name of such end-buyer would have appeared as importer and not that of the appellant - The same considerations operate against the assertion that the appellant was only acting as an agent of the end-buyers. The High Court has rightly pointed out that the Customs House Agent is an entirely different person who acts only to present papers for clearance of the imported goods under a bill of entry. Of course, under Section 147 of the Customs Act, a person could act on behalf of importer or owner but such a person cannot be treated as owner of the goods nor could be made liable for customs duty. If the appellant was merely acting as an agent, then bill of entry would have reflected the name of end-buyer as the importer and the appellant as an agent of the importer; and further to that, the said end-buyer would have been assessed for customs duty. It were not so. Though the definition of importer includes owner or any person holding out himself as the importer; and this definition of importer is not really relevant to the question of title but, that does not mean that a person who holds out himself to be the importer; and who files the bill of entry for home consumption; and who is assessed for customs duty; and whose suggestion about transfer of title to a third person is not established by any reference to any official record, the transfer on high seas may be presumed on mere suggestion about the alleged endorsement of bill of lading. The High Court was right in observing that once the appellant got released the goods after filing the bill of entry for home consumption, the import stream dried up and the goods got mixed in the local goods. Any movement of the goods thereafter was bound to be a sale under Section 3(a) of the CST Act; and such movement being from the State of Andhra Pradesh to other State, it had been a matter of inter-State sale. The principle that actual sale may not necessarily precede the movement of goods, in its true effect, operates rather against the appellant in relation to the sale to end-buyers after the goods were cleared for home consumption. The claimed exemption under Section 5(2) of the CST Act has rightly been denied to the appellant and the High Court has been justified in dismissing the writ petitions filed by the appellant. The High Court has yet been considerate and gave time to the appellant to submit C-Forms for availing the benefit of concessional rate of tax. No case for interference is made out - we may observe that in terms of the orders passed in these appeals, the appellant has deposited an amount of ₹ 7,07,325/- with the respondent. As these appeals are being dismissed, the respondent shall be entitled to adjust the same against the dues of the appellant. Appeal dismissed.

Summary

Issues Involved:
1. Whether the Commercial Tax Officer (CTO) had the authority to pass the assessment order.
2. The extent, scope, and contours of judicial review of the assessment order in writ jurisdiction.
3. Whether the sale by the appellant to the end-buyers was an inter-State sale or a sale in the course of import.
4. Whether the sale in favor of the end-buyers occasioned the movement of goods into the country.
5. Whether the procedure prescribed for duty-free shops was applicable to the present case.
6. Whether the appellant was entitled to be granted time to submit C-Forms.

Detailed Analysis:

1. Authority of CTO:
The High Court examined the provisions of the A.P. Value Added Tax Act, 2005, A.P. Value Added Tax Rules, 2005, and Section 9(2) of the CST Act. It ultimately rejected the appellant's contention that the CTO lacked authority to assess tax under the CST Act.

2. Judicial Review of Assessment Order:
The High Court noted the limited parameters within which the validity of assessment orders could be examined in certiorari jurisdiction. It observed that the appellant had invoked writ jurisdiction without availing the statutory remedy of appeal and sought a writ of mandamus, which was not appropriate. The High Court pointed out that the assessing authority had not considered the effect of high seas sale agreements and other documents but held the sales by the appellant as inter-State sales because the appellant filed bills of entry for home consumption and was assessed to customs duty.

3. Nature of Sale (Inter-State vs. Import):
The High Court observed that the appellant alone was assessed to customs duty and the name of the end-buyers was not reflected as the importer in the Import General Manifest (IGM). The sale by the appellant to the end-buyers could only have been effected after the goods were cleared for home consumption. The High Court found that the sale in question was an inter-State sale liable to tax under the CST Act.

4. Sale Occasioning Movement of Goods:
The High Court noted that the plea that the sale occasioned the movement of goods into the country was raised for the first time in writ proceedings and was a mixed question of facts and law. Even otherwise, the High Court observed that the name of the appellant, and not the end-buyers, was reflected in the bill of entry as the importer of the goods.

5. Procedure for Duty-Free Shops:
The High Court distinguished the decision in Hotel Ashoka (Indian Tourist Development Corporation Ltd.) v. Assistant Commissioner of Commercial Taxes and Anr., which related to goods sold at duty-free shops. The High Court held that the procedure prescribed for duty-free shops was not applicable to the present case.

6. Time to Submit C-Forms:
The High Court granted the appellant three months to produce the prescribed C-Forms for availing the benefit of the concessional rate of tax. It observed that the appellant would be able to procure C-Forms only if the dealers were in existence.

Conclusion:
The High Court upheld the assessment orders, rejecting the appellant's contentions that the sales were in the course of import and not inter-State sales. The High Court granted the appellant time to submit C-Forms for concessional tax rates. The Supreme Court found no reason to interfere with the High Court's decision and dismissed the appeals, confirming that the sales in question were inter-State sales liable to tax under the CST Act. The Supreme Court also emphasized that the appellant, having invoked writ jurisdiction and contested the matter on merits, could not now seek to re-open the matter in appeal.