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TMI Blog1992 (12) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... one certificate of origin, (iv) non-negotiable documents to be mailed to the place of business of the foreign buyer at Czechoslovakia. 2.. On receipt of the purchase order from the foreign buyer, the goods were manufactured by the applicants in or about May, 1992 and the same were despatched through United Transport Agency by a truck bearing registration No. WGA 2802 from Durgapur to Calcutta port for the purpose of exporting the same to Czechoslovakia. When the truck carrying the said goods reached Hossenabad check-post in the district of Hooghly, the applicants filed the requisite form IV together with an application in form XV duly signed along with other connecting documents to show that no entry tax is payable under the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972 (hereinafter referred to as "the Act") inasmuch as those profiles were being brought for the purpose of export to Czechoslovakia. The applicants requested for issuance of necessary "Transport Pass" under the Act. The Entry Tax Officer, however, observed that the applicants were liable to pay entry tax under the Act and the lorry carrying the said goods from Durgapur was not allowed to cross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial screens) which have been detained at Hossenabad without payment of any entry tax for the present and the applicants were directed to furnish a bank guarantee for Rs. 10,000 in favour of respondent No. 1. The bank guarantee has been furnished and the lorry with the disputed goods has been released. We have been informed that the disputed goods have been exported to the foreign buyer at Czechoslovakia from Calcutta port. 4.. The respondents have contested the case by filing an affidavit-inopposition. Their case, in short, is that the documents produced by the applicants at the check-post at Hossenabad disclosed that the applicants were required to sell the disputed goods from the Port of Calcutta on f.o.b. contract and as such, they are liable to pay entry tax on sales of the disputed goods. The question of issuance of "Transport Pass" under section 21 of the Act could never arise when the respondents were satisfied that the disputed goods were to be sold in Calcutta Metropolitan Area. Their further case is that if the applicants were at all interested in exporting the disputed goods to a place outside India from the very point of entry, they should have filed an application u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in Murarilal Sarawagi v. State of Andhra Pradesh [1977] 39 STC 294 (SC) and has contended that in f.o.b. contract the almost universal rule is that the property and risk both pass on shipment as soon as the goods are over the ship's rail and the property and risk in each part of the cargo will pass on as it crosses the ship's rail. The loading of the goods is an unconditional appropriation which passes the property. Mr. Talukdar, learned Advocate for the applicants, has contended that the general principle in f.o.b. contract is not attracted to the instant case in view of the fact that under the terms of the contract the title of the goods would not pass unless the original negotiable documents are retired by the foreign buyer after making payments at Czechoslovakia. The question where the sale of the disputed goods would really take place appears to us to be a question of fact and we do not think, we are required to decide that question in the present case as the applicability of entry tax in respect of the disputed goods can be decided on the other ground taken by the applicants' learned Advocate, Mr. Talukdar. 7.. The learned Advocate for the applicants, Mr. Talukdar's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Taxes on the entry of goods into a local area for consumption, use or sale therein." In Tata Engineering Locomotive Company Limited v. Municipal Corporation of the City of Thane [1992] 86 STC 363 (SC); AIR 1992 SC 645 (at page 649), their Lordships have pointed out the definition of "octroi" in the Bombay Provincial Municipal Corporations Act, 1949 and in the Maharashtra Municipalities Act, 1965 as meaning a tax on the entry of goods into the municipal area "for consumption, use or sale therein". There cannot be any doubt that the law relating to the nature and incidence of octroi as enunciated by the Supreme Court is applicable in respect of the nature and incidence of entry tax under the Act. In Tata Engineering Locomotive Company Limited v. Municipal Corporation of the City of Thane [1992] 86 STC 363 (SC); AIR 1992 SC 645, the judgments reported as Burmah-Shell Oil Storage and Distributing Co. of India Ltd. v. Belgaum Borough Municipality AIR 1963 SC 906 and also Municipal Council, Jodhpur v. Parekh Automobiles Ltd. [1990] 1 SCC 367 have been referred and discussed and at para 29 (page 389 of STC), their Lordships have summed up the law regarding the nature and incidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in Union of India v. Wood Papers Ltd. [1991] 83 STC 251 (SC) and has contended that where exemption clause is provided in the statute, it would require strict compliance. Mr. Bose citing the decisions reported in Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh [1981] 48 STC 411 (SC), Khazan Chand v. State of Jammu and Kashmir [1984] 56 STC 214 (SC) and Collector of Central Excise, Bombay v. Parle Exports (P.) Ltd. [1989] 75 STC 105 (SC) has drawn our attention as to how tax statutes have been interpreted. In the instant case before us, those decisions, cited by Mr. Bose, are not attracted in view of the law clearly laid down by the Supreme Court on the nature and incidence of octroi in the light of constitutional bar. Section 9 of the Act reads as under: "Subject to such rules, not inconsistent with the provisions of this Act, as the State Government may make in this behalf, any specified goods which are brought into the Calcutta Metropolitan Area for the immediate export thereof may, at the option of the dealer, be exempted from the tax leviable thereon under this Act, if such goods are conveyed direct from the place of entry into the Calcutta Metropolitan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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