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TMI Blog1993 (10) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Schedule of that Act of 1962. Section 4 of the Act of 1962 is the charging section. Under section 5(1) of that Act of 1962, the dealer of taxable goods, on or before the entry of the goods in a local area, is to deliver to the prescribed authority a bill of entry relating thereto in such form and containing such particulars as may be prescribed. On the due delivery of such bill of entry, the tax leviable on the entry of such goods is to be assessed by the prescribed authority in the prescribed manner under section 5(2) of that Act of 1962. No taxable goods, other than the goods mentioned in section 4(3) of that Act, entering a local area can be transported or removed from a notified place except on production before the concerned officer of a transport pass granted by the prescribed authority certifying either (a) that no tax is leviable on the ground that the goods entering the local area are not for consumption, use or sale in such local area or (b) that the tax leviable on the entry of such goods has been duly paid. When it appears to the prescribed authority that the taxable goods, in respect of the entry of which tax is payable under the Act, have entered a local area a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 14 and 5(3) of the Central Sales Tax Act, 1956. Though the goods were exported by the Jute Corporation of India Ltd., it was the applicant who actually exported the goods after obtaining order of contract for such export. The contract, the export licence and the letters of credit by the foreign buyers in the name of the Jute Corporation of India were at the instance of the applicant, due to the canalisation of export of goods under the orders of the Government of India through the Jute Corporation of India. The applicant preferred appeals against these three orders of assessments. On apprehending that appeals preferred against the orders of assessments passed on July 19, 1975, December 22, 1975 and June 19, 1976 will be dismissed as similar appeals in the cases of other jute merchants had been dismissed, the applicant moved the High Court, Calcutta, under article 226 of the Constitution for setting aside these orders of assessments and for issuing a writ in the nature of prohibition restraining the respondents from giving any effect to these orders of assessments. 4.. The defence, as transpiring from the affidavit-in-opposition filed for the respondents, is a denial of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited company, in Case No. RN-150(T) of 1992 is similar to the case of the applicant in Case No. RN-149(T) of 1992. In the case of W.F. Ducat and Company Private Limited, there were assessments under section 10(1) of the Act of 1962 by the respondent No. 3, Commercial Tax Officer, Central Section for the periods from August 1, 1974 to December 31, 1974, January 1, 1975 to October 31, 1975 and November 1, 1975 to March 31, 1976 on July 19, 1975, December 15, 1975 and October 27, 1976 respectively, after receipt of notices by the applicant in form IX issued under rule 13 of the Rules of 1955. The applicant in Case No. RN-150(T) of 1992 filed appeals against these three orders of assessments. The appeals in respect of the periods from August 1, 1974 to December 31, 1974 and from January 1, 1975 to October 31, 1975 have been dismissed by the respondent No. 2, Assistant Commissioner of Commercial Taxes, Central Section on August 10, 1979 and August 17, 1979 respectively. The other appeal in respect of the period from November 1, 1975 to March 31, 1976 is still pending. The applicant has challenged these three orders of assessments on the grounds which are similar to the grounds mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of India, who in turn paid the applicant in each of the two cases in Indian currency. On the basis of these facts, which are not disputed, the contention of Mr. Sumit Chakraborty, the learned Advocate for the applicant in both the cases, is that the goods were imported in the local areas by the applicant in the two cases not for consumption, use or sale in the local areas but for export of the same to foreign countries and that, as such, under the charging section 4 of the Act of 1962, entry tax should not be levied on the applicants. Mr. Sumit Chakraborty, the learned Advocate for the applicant in both the cases, has, in this connection, referred us to the cases of Siddhagiri v. Entry Tax Officer [1993] 89 STC 221 (Kar), Tata Engineering Locomotive Company Limited v. Municipal Corporation of the City of Thane [1992] 86 STC 363 (SC) and Municipal Council, Jodhpur v. Parekh Automobiles Ltd. [1990] 32 STL 26 (SC). Mr. S.N. Bose, learned advocate for the respondents, has referred us to the case of Food Corporation of India v. Commissioner of Sales Tax [1992] 85 STC 335 (MP) and has contended that the breaking of the bulk and repacking of the jute in bales within the local are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fusal of the municipality to refund certain amounts, even though these amounts were refundable under its bye-laws. The first petition was in respect of a consignment which was designated as a through consignment. The second petition concerned goods in transit and goods for export other than those which could be called goods in transit. One of the questions considered in that case was whether octroi duty paid was refundable in respect of the goods sold within the octroi limits by the importer, even though it resulted in export of the goods and the consumption was also outside the octroi limit. The ratio of the decision of the Supreme Court in the case of Burmah-Shell Oil Storage and Distributing Co. of India Ltd. v. Belgaum Borough Municipality AIR 1963 SC 906 was that the octroi duty paid was refundable. The decision in the case of Burmah-Shell AIR 1963 SC 906 came up for review in the case of Hiralal Thakorlal AIR 1976 SC 1446. It was held by the Supreme Court in the case of Hiralal Thakorlal AIR 1976 SC 1446 that the word "sale" in the charging section meant sale for consumption within the octroi limits and that the law had been clearly laid down in the Burmah-Shell's case AIR 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of octroi in respect of paddy imported by it into the local area and ultimately exported out of the State of Madhya Pradesh after converting the paddy into rice after dehusking. It was held in that case by the Madhya Pradesh High Court, on following a previous decision of the Supreme Court in the case of Ganesh Trading Co. v. State of Haryana [1973] 32 STC 623 that bringing of paddy within the local area and its export, after dehusking as rice amounted to consumption, use or sale therein, so as to attract entry tax under the Madhya Pradesh Act. On the ratio of this decision of the Madhya Pradesh High Court in the case of the Food Corporation of India [1992] 85 STC 335 levy of entry tax on the applicant in each of the two cases cannot be justified on the ground that there was repacking of the bulk of jute into bales by the applicant in the two cases, by breaking the bulk, prior to sale inside the local areas by the applicant in the two cases to Jute Corporation of India, before export of the jute by the Jute Corporation of India from the local areas to foreign countries. Merely on the ground that the jute was not exported in bulk, as originally imported, there cannot be levy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jute Corporation of India. The assessments in question in the two cases are, thus, to be quashed and there will be a writ in the nature of prohibition, as prayed for. 13.. The application in each of the two cases, viz., RN-149(T) of 1992 and RN-150(T) of 1992, is accordingly allowed. The assessments made by the respondent No. 3, Commercial Tax Officer, Central Section, in each of these two cases for the periods from August 1, 1974 to December 31, 1974, January 1, 1975 to October 31, 1975 and November 1, 1975 to March 31, 1976 are quashed. The appellate orders dated August 10, 1979 and August 17, 1979 for the periods from August 1, 1974 to December 31, 1974 and January 1, 1975 to October 31, 1975 respectively in Case No. RN-150(T) of 1992 are set aside. The respondents are restrained by a writ in the nature of prohibition from giving any effect to the impugned orders of assessments in Cases Nos. RN-149(T) of 1992 and RN150(T) of 1992. The interim order dated February 12, 1982 in C.R. 479(W) of 1982 [RN-149(T) of 19921 and interim order dated February 12, 1982 in C.R. No. 478(W) of 1982 [RN-150(T) of 1992] are vacated. The applicant in each of the two cases is discharged from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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