9911796707
TMI Blog1998 (9) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents. -------------------------------------------------- The appeal impugns the correctness of a judgment of a division Bench of the High Court of Orissa dismissing the writ petitions filed by the appellant. 2.. The appellant is a Government of India undertaking. It functions as a canalising agent for the purpose of import and export of minerals and metals. It had, for this purpose, issued guidelines to actual users in the matter of applications for the import of iron and steel items to be canalised through it. Thereby the actual user was informed that the formal purchase order on the foreign exporter would be released by the appellant after the actual user had made financial arrangements to cover the purchase. The ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by your banker against L/C established by you." SAIL was requested to make arrangements for clearing the cargo, including arrangements for clearance thereof from customs. The letter stated that the responsibility for "payment of import duties, port charges and other expenses subsequent to sale on 'high seas' also will be to your account". On October 23, 1991, the appellant sent to SAIL its invoice, adjusting the amount that had already been paid by SAIL through its bankers. On October 28, 1991, the appellant wrote to SAIL stating that it had decided to make a high seas sale of the said coils to SAIL. Accordingly, documents with due endorsement thereon were sent to SAIL to get the said coils cleared. The documents that were enclosed include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India", which expression was defined in section 2(ab) of the Central Sales Tax Act by an amendment which had taken place prior to the aforesaid sales. The High Court, however, relying upon the judgment of the Karnataka High Court in the case of Cashew Corporation of India Ltd. v. State of Karnataka [1986] 63 STC 90, held that the appellant was liable to sales tax and dismissed the writ petitions. 6.. By reason of the provisions of article 286(1)(b) no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place in the course of import of the goods into, or export of the goods out of, the territory of India. Section 5 of the Central Sales Tax Act deals with this: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms port, customs airport or land customs station". A customs port is any port appointed under clause (a) of section 7 of the Customs Act to be a customs port. (That Paradeep Port is a customs port is not in dispute). 8.. Section 5, sub-section (2) has two parts. 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 if the sale or purchase either (i) occasions such import or (ii) it is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India, that is to say, before the goods have crossed the limits of the area of the customs station in which they are kept before clearance by the customs authorities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of the import of the said coils into the territory of India; it was effected by transfer of the documents to the said coils before they had crossed the limits of the customs station at Paradeep Port. The position would be the same in respect of the goods sold to Paradeep Phosphates Ltd. 12.. The High Court noticed the argument based on the latter part of section 5 but did not address it. It relied upon the judgment of the Karnataka High Court in the case of Cashew Corporation of India Ltd. [1986] 63 STC 90. That was a case where notice was taken of the amendment introducing section 2(ab) into the Central Sales Tax Act in 1976. It was held to be prospective in operation and, therefore, of no assistance in construing the meaning of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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