9911796707
TMI Blog1984 (3) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... d to Russia. In the year 1977-78 the opposite party purchased shoes worth Rs. 19,43,904.80 and submitted a declaration in form III-A. In the year 1978-79 it appears shoes worth Rs. 8,51,040.00 (were purchased) and in regard to this purchase also a declaration in form 111-A was submitted by it. The question which arose for determination before the authorities below and arises for consideration in the present revisions is whether the opposite party was liable to pay tax in respect of the aforesaid purchase under section 3-AAAA of the Act. That part of section 3-AAAA of the Act which is relevant for purposes of the present revisions reads as follows: "Where any goods liable to tax at the point of sale to the consumer are sold to a dealer but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where relying on an earlier decision of the Supreme Court in Mod. Serajuddin v. State of Orissa [1975] 36 STC 136 (SC) it was held that the sale by the assessee in that case in favour of the State Trading Corporation was a local sale as distinguished from an export sale. On this view the Tribunal held on 14th October, 1982 that the opposite party was not liable to pay any tax in the years 1977-78 and 1978-79 under section 3-AAAA of the Act. It is this order of the Tribunal against which these two revisions have been preferred by the Commissioner of Sales Tax. It has been urged by the Standing Counsel appearing for the Commissioner of Sales Tax that in view of sub-section (3) of section 5 of the Central Sales Tax Act, the sale by the oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 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. (3) Notwithstanding anything contained in sub-section (1), the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India shall also be deemed to be in the course of such export, if such last sale or purchase took place after, and was for the purpose of complying with, the agreement or order for or in relation to such export." A plain reading of sub-section (3) of section 5 makes it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration before the Supreme Court in Consolidated Coffee Ltd. v. Coffee Board [1980] 46 STC 164 (SC). The following observations made by the Supreme Court in the aforesaid case are of significance in appreciating the import of section 5(3): "In our view, when sub-section (3) of section 5 uses the word 'deemed' and says that the penultimate sale 'shall also be deemed to be in the course of export' what is intended to be conveyed is that the penultimate sale shall also be regarded as being in the course of such export. In other words, no legal fiction is created." "It is thus clear to us that section 5(3) formulates a principle of general applicability in regard to all penultimate sales provided they satisfy the specified condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of export. On its basis it was urged that section 5(3) could be read only to find out the extent of the exemption from tax liability and could not be pressed in service in support of the submission that penultimate sale was not an inter-State sale within the meaning of section 3-AAAA. In my opinion the context in which the aforesaid observation was made is apparent and that observation in no way detracts the law laid down by the Supreme Court in the aforesaid case that if the conditions laid down in sub-section (3) of section 5 are made out then the "penultimate sale shall also be regarded as being in the course of such export". It has not been disputed by counsel for the parties that the sale covered by sub-section (1) of section 5 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the opposite party has placed reliance on certain other decisions also laying down the interpretation of inter-State sale but since even those decisions are of a date prior to the insertion of sub-section (3) in section 5 of the Central Sales Tax Act, I am of the opinion that they are not useful for deciding the question involved in these revisions. As such I do not find it necessary to refer to those decisions. In view of the foregoing discussion it is a fit case where the order of the Tribunal may be set aside and the Tribunal may be directed to decide the second appeals filed by the opposite party afresh. While doing so it shall record findings on the questions as to whether the other conditions contemplated by section 3-AAAA of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
