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TMI Blog1994 (12) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee. The said order gave rise to the abovesaid three tax revision cases. The methodology adopted by the assessee is that it imports spares from overseas and warehouses them in "the customs licensed bonded warehouse". Those goods are cleared by the assessee at times for sale in the local market. They are also sold by him to the owners of the fishing trawlers, which he calls as "export sales". The disputed turnover relates to the so-called "export sales". In respect of the said sale he claimed exemption under section 38 of the State Act on the ground that the sales have taken place in the course of export of goods out of the territory of India. The said authority rejected the claim of exemption, treated them as "local sales" and assessed the disputed turnover to tax. This view was confirmed by the Appellate Deputy Commissioner on appeal. On further appeal, the Tribunal agreed that the sales are not "export sales" and confirmed the order of the Appellate Deputy Commissioner. The learned counsel for the petitioner submits that the term "export" is not defined either under the State Act or under the Central Sales Tax Act, 1956, therefore, the definition of "export", gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the import of the goods into, or export of the goods out of the territory of India or in the course of inter-State trade or commerce, the authorities under the State Sales Tax Act have no jurisdiction to levy tax on the turnover of such sales or purchases. The Explanation appended to the said section makes Chapter II of the Central Sales Tax Act, 1956, applicable for purposes of determining when a sale or purchase takes place in the course of inter-State trade or commerce or outside a State or in the course of import or export. The relevant provision for our purpose is section 5 of the Central Sales Tax Act, 1956, which falls in Chapter II. Section 5 raises statutory presumption and in so far as it is relevant for our purpose, reads as under: "5. When is a sale or purchase of goods said to take place in the course of import or export.-(1) A sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India. (2)........................." T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business at Calcutta. They maintained supply depots at Dum Durn Airport from which aviation spirit was sold and delivered to aircraft proceeding abroad for its consumption. The question was whether the sale of the aviation spirit was liable to sales tax under the Bengal Motor Spirit Sales Taxation Act, 1941. The appellants' contention was that the sales were made in the course of export of aviation spirit out of the territory of India. Therefore, such sales would not fall within the Explanation* to sub-clause (a) of the first clause of article 286 of the Constitution of India and as such the turnover was not liable to sales tax. M. Hidayatullah, J., as he then was, speaking for the Supreme Court, explained the principle in the following terms: ".....Here, the buyer does not export the goods to a foreign country, but purchases them for his own use on the journey of the aircraft to foreign countries. This difference is vital, and makes the position of the appellant-companies, if anything, weaker. It is for this reason that the appellant-companies depend on a wide. meaning of the word 'export', which they illustrate from other Acts where the word is tantamount to 'taking out of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the State Act. It was held that a mere movement of the goods out of the country following a sale would not render the sale one in the course of export within article 286(1)(b) of the Constitution of India and that before a sale can be said to be a sale in the course of export, the existence of two termini as those between which the goods are intended to move or to be transported was necessary. In State of Kerala v. Cochin Coal Company Ltd. [1961] 12 STC 1; AIR 1961 SC 408, the question which fell for consideration of the Supreme Court was whether the transactions of sale of bunker coal to be supplied from the assessee's depot in Candle Island in Madras State and trimmed into the steamships standing in the waters of Port Cochin to enable them to sail out of India, can be said to be sales in the course of export within the meaning of article 286(1)(b) of the Constitution of India. Relying on the decision of BurmahShell Oil Storage and Distributing Co. of India Ltd. v. Commercial Tax Officer [1960] 11 STC 764 (SC); AIR 1961 SC 315, the Supreme Court answered the question in the negative. However, Sri Koka Raghava Rao, the learned counsel for the petitioners, argued that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such goods for exportation, that is, for taking the goods to a place outside India. Whether the sale of goods has occasioned such export of goods, is not the relevant factor under section 69 whereas it is a germane consideration for treating the sale as export sale. We are, therefore, of the view that merely because the goods were allowed to be cleared under section 69 for purposes of export, the same cannot be treated as "export" for purposes of section 5(1) of the Central Sales Tax Act. In this view of the matter, we find no error of law in the order of the Tribunal under revision. The tax revision cases are without any merit. They are accordingly dismissed but, in the circumstances, without costs. The contention of the assessee-petitioner in the writ petition is that while the tax revision cases are pending consideration by the High Court, making provision in the assessment on the same ground which is a subject-matter of adjudication in the T.R.Cs., is illegal; the further prayer is as there is no provision in the State Act enabling the Tribunal to grant stay of the recovery of tax in dispute, this Court, in exercise of the jurisdiction under article 226 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X
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