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TMI Blog1972 (6) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... igation to sell the machines to the purchasers. Therefore, the sales of the machines took place in the course of import of the goods into the territory of India as the sales had occasioned the imports and those transactions were exempt from payment of sales; - Civil Rule No. 217(W) of 1961 - - - Dated:- 16-6-1972 - CHITTATOSH MOOKERJEE J. S.N. Dutt, for the respondents. Ranadab Chaudhuri and S.K. Roy Choudhury, for the petitioner. -------------------------------------------------- The petitioner is a company incorporated in England. It has its works at Altringham, Cheshire, England, and it manufactures linotype machines at its said works. The petitioner claims that its office at Calcutta is a branch office. On or about 1st March, 1956, and 30th April, 1956, the Government of India, through the Deputy Controller, Stationery, Calcutta, placed two orders upon the petitioner for sale and supply to the Manager, Government of India Press, New Delhi, of certain linotype machines at the prices and on the terms and conditions mentioned in the said orders. On or about 30th November, 1955, the Controller of Stores, Punjab, Jullundur City, placed an order with the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner on the ground that such sales were exempted under section 5(2) of the Central Sales Tax Act, 1956. In the meantime, certificate cases were started against the petitioner in realisation of the outstanding taxes due in respect of the period 1st July, 1957, to 24th July, 1957, and for the period 25th July, 1957, to 30th June, 1958. The petitioner obtained this rule challenging the said assessment orders and also the certificate cases. Mr. Chaudhuri, the learned Advocate for the petitioner has submitted that the Commercial Tax Officer committed an error apparent on the face of the record by disregarding the provision of section 5(2) of the Central Sales Tax Act. According to the petitioner, in view of the said provision, the Commercial Tax Officer has no jurisdiction to assess sales tax under the Central Sales Tax Act, 1956, upon the sales of the machineries made by the petitioner to the Government of India and the then Government of Punjab, as the said sales and purchases occasioned imports from England within the meaning of section 5(2) of the Act. Reliance has been placed upon the decision of the Supreme Court in K.G. Khosla and Co. (P.) Ltd. v. Deputy Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. S. R. Sarkar [1960] 11 S.T.C. 655 (S.C.). The view of the Madras High Court that before the sale could be said to have occasioned the import, it was necessary that the sale should have preceded the import, was not accepted. Mr. Dutt, the learned Advocate for the respondents, has not disputed the legal position that if the sales of the aforesaid machineries to the Government of India and the then Government of Punjab occasioned the imports then such sale transactions would be exempted. But Mr. Dutt has submitted that in the instant case, the sales did not occasion the imports. Mr. Dutt has further submitted that the petitioner did not produce relevant documents before the Commercial Tax Officer to establish its claims that the impugned sale took place in the course of their import into the territory of India or, in other words, they did not prove before the Commercial Tax Officer that the sales occasioned the imports. Both parties before me have produced relevant documents. The petitioner has annexed to its petition documents relating to these impugned sales. On 19th July, 1955, the petitioner in reply to the letter of the Deputy Controller of Stationery, Government of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the payment would be made after the machines were erected and to perfect working order. The shipment was expected to be ready in March, 1956. The Controller of Stores, Punjab, Jullundur City, had asked the petitioner to submit tender for supply of linotype machines according to suggested specification. On 12th September, 1955, the petitioner submitted its quotation to the Controller of Stores, Punjab, Jullundur City. The prices quoted were f.o.r. Jullundur. Regarding delivery, it was stated that the petitioner's works will be able to ship the machines in or about 8 months from the date of receipt of the firm order. The Controller of Stores, Punjab, with reference to the said order, placed orders for one brand new model standard British-built linotype composing machine according to the specifications mentioned in the order. The petitioner has also produced in this court the copies of the invoices in respect of these machines. All these invoices stated that the goods were packed at the petitioner's works at Altringham, Cheshire, England, the cost for the carriage of the said goods to the port of shipment, sea freight and insurance were charged. The prices were quoted bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m payment of sales tax. In the meantime, the sales tax authorities had started certificate proceedings against the petitioner. Thereafter, the petitioner moved this court. I have found that the Commercial Tax Officer had no jurisdiction to assess sales tax and the assessed taxes may be irrecoverable. Therefore, in such a case, a writ of certiorari should issue almost as a matter of course as there was patent error of jurisdiction, and the existence of an alternative remedy by way of appeal against the impugned assessment order cannot be a bar to the maintainability of this writ petition. Accordingly, the impugned assessments should be quashed and the respondents should be restrained from proceeding with the certificate cases for realisation of the said purported taxes from the petitioner. I, accordingly, make this rule absolute and quash the impugned assessment orders so far as the same imposed sales tax upon the three said transactions of Linotype machines set out in the petition. I also quash the impugned certificate proceeding for realisation of the said taxes from the petitioner. There will be no order as to costs. Rule made absolute. - - TaxTMI - TMITax - CST, VA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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