9911796707
TMI Blog1992 (6) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... s pro forma respondent No. 1 in the application. The sale was the last sale preceding the sale occasioning the export of those goods by the Kerala dealer (which is not a registered dealer in West Bengal) out of the territory of India, and in terms of section 5(3) of the Central Sales Tax Act, 1956, the last sale took place after the order for export was placed with the Kerala dealer by the Sri Lanka State Trading (General) Corporation, and the impugned sale of 55,000 sets of tea-chests which took place in the year 1978 was for the purpose of complying with that export order. In assessing the applicant for the period of four quarters ending March 31, 1979, under the 1941 Act, respondent No. 4, the Commercial Tax Officer, disallowed the claim of deduction of the impugned sale of tea-chests on the ground of failure to produce documents required under section 5(3) of the Central Sales Tax Act, 1956. Appeal from that assessment order dated December 16, 1982, to the Assistant Commissioner was fruitless. The applicant preferred a revision before the Tribunal below, namely, the West Bengal Commercial Taxes Tribunal, and the revision was rejected by an order dated October 22, 1986, as far a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds also. 4.. No affidavit-in-opposition was naturally filed on behalf of respondent No. 2, the Tribunal below. An opposition was filed on behalf of respondents Nos. 1, 3 and 4. Their case is that the applicant is required to produce necessary documents and prescribed declaration forms in order to establish that the goods were exported outside India and were sold for the purpose of such export (paragraphs 8 and 9). In paragraph 10, respondents Nos. 1, 3 and 4 state that the applicant sold the goods to the Kerala dealer's agent who exported the same outside West Bengal. According to these respondents, the applicant could get the exemption from tax by producing a declaration in form H at the time of assessment together with other documents in order to prove these facts. It is specifically pointed out that the assessing officer did not say that form XXXIII must be produced (paragraph 11). The stand of respondents 1, 3 and 4 is that production of form H and form XXXIII is mandatory and also that form H could be produced to avail of the exemption (paragraphs 16 and 22). Their further stand is that rule 27C(2) of the 1941 Rules is "evidently for dealers registered" under the 1941 Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 956 and article 286(1)(b) of the Constitution do not make any distinction between a registered and an unregistered dealer. 8.. Having considered the facts and circumstances of the instant case, the factual position that emerges is that there has never been any dispute that the applicant's sale of 55,000 sets of tea-chests to the exporter, namely, the purchasing dealer of Kerala, would come within the scope and ambit of section 5(3) of the Central Sales Tax Act, 1956 and the sale was otherwise entitled to exemption from State tax in view of article 286(1)(b) of the Constitution. Rule 27C(2) of the 1941 Rules requires production of a declaration in form XXXIII and other documents for availing of the exemption admissible under section 5(2)(a)(v) of the 1941 Act read with section 5(3) of the Central Sales Tax Act, 1956. In this particular case, the purchasing dealer of Kerala prayed for issuing such a declaration form, but was denied on the ground that it was not a registered dealer in West Bengal. So, the applicant could not produce form XXXIII. It will appear from the appellate order dated July 22, 1984, of the Assistant Commissioner that declaration in form XXXIII was refused on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,000 sets of tea-chests came within section 5(2)(a)(v) of the 1941 Act read with section 5(3) of the Central Sales Tax Act, 1956, the authorities are not entitled to deny the exemption to the applicant, in the absence of any specific rule governing cases of this nature about any particular mode of proof. In this case, at no stage, the facts as asserted by the applicant were denied or controverted by the Revenue. Therefore, although, the applicant had failed to produce form XXXIII, the exemption claimed could have been granted, if the Commercial Tax Officer or the other authorities found from other evidence produced by the applicant that the applicant was successful in establishing that the impugned sale was covered by section 5(2)(a)(v) of the 1941 Act read with section 5(3) of the Central Sales Tax Act, 1956. 10.. That is one aspect of the matter. The other aspect is whether production of declaration in form XXXIII under rule 27C(2) is directory. It is to be noted that article 286(1)(b) of the Constitution and section 5(2)(a)(v) of the 1941 Act do not envisage any additional condition for grant of the exemption from State sales tax. Rule 27C(2) of the Bengal Sales Tax Rules, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdance with law and in accordance with this judgment. In other words, respondent No. 4 shall give an opportunity to the applicant to produce before him evidence to establish that the sale of 55,000 sets of tea-chests to the purchasing dealer of Kerala was a sale in the course of export within the meaning of section 5(3) of the Central Sales Tax Act, 1956 and that the goods had actually been exported out of the territory of India and therefore were entitled to exemption from sales tax under section 5(2)(a)(v) of the 1941 Act. Such fresh assessment to that extent shall be made by respondent No. 4 within three months from this date and not thereafter. Respondent No. 4 or any other authority under the 1941 Act will not insist on production of declaration in form XXXIII by the applicant in respect of the impugned sale. The writ petition is thus disposed of without any order for costs. P.C. BANERJI (Technical Member).-I agree with the view that the claim of the dealer in the instant case should be disposed of on the basis of evidence produced by the applicant without insisting on the furnishing of the declaration form by the exporter. I have, however, reached this conclusion on a diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rived of the benefit of deduction for failure to accomplish an impossible task, namely, furnishing of the required declaration. In the result, a statutory provision with regard to non-exigibility of a sale sanctioned by the Parliament in exercise of its legitimate constitutional powers, has been rendered nugatory and ineffective by the rule-making authority of the State. 19.. This rule does not take care of cases where the exporter may be one, who is not a registered dealer in West Bengal, as in the present case. If the furnishing of the declaration is considered mandatory, the said rule may contravene statutory and constitutional provisions. Such an interpretation of the rule has to be discarded in the interest of protecting the constitutionality of the provision, when a more plausible and reasonable construction is available. 20.. The statutory provision in the State Act to give effect to the nonexigibility of sale in terms of section 5(3) of the Central Sales Tax Act, 1956, is contained in section 5(2)(a)(v) of the Bengal Finance (Sales Tax) Act. It provides that the turnover on "sales which are shown to the satisfaction of the Commissioner ....... to have taken place in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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