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TMI Blog1996 (6) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the order dated September 27, 1994 of the Board in appeal No. 193/93/ST/Ajmer of the petitioner and cross appeal No. 813/93/ST/Ajmer of the non-petitioner by which the appeal of the non-petitioner was accepted. 4.. The relevant facts of the case are that the premises of the petitioner was surveyed by the Assistant Commissioner (Anti-Evasion) (AC A/E), Ajmer on January 2, 1992 under section 22 of the RST Act. This resulted in two assessment orders. The first dated June 22, 1992, pertained to the period 1990-91. The second dated June 30, 1992, pertained to the period 1991-92. The assessment with respect to 1990-91 is the subject-matter of revision petition No. 3 of 1995 while that for 1991-92 is the subject-matter of revision petition No. 2 of 1995. 5.. With respect to 1990-91 the petitioner had, inter alia, declared Rs. 1,89,71,858.26 to be the value of exports made out of India with form H and covered by section 5(3) of the Central Sales Tax Act, 1956 (hereinafter referred to as "the CST Act"). Of this the AC A/E disallowed Rs. 57,45,945.50 treating that to be actually the value of inter-State sales, of which Rs. 22,37,405 was sesame ("till") purchased from cultivators on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.58 to be the value of exports made out of India. This included Rs. 9,40,097.08 worth of sesame supplied by the petitioner to M/s. ITC Ltd., Secunderabad and to Gujarat Agro Industries Corporation Ltd., Ahmedabad. Copies of correspondence revealed that these firms had simply purchased the sesame from the petitioner. The AC A/E did not accept these transactions as covered by section 5(3) of the CST Act and assessed the Rs. 9,40,097.08 to purchase tax under section 5A of the RST Act at 4 per cent amounting to Rs. 37,602, and imposed a penalty of like amount under section 16(1)(i) of the RST Act and of Rs. 500 under section 16(1)(c) of the RST Act and interest of Rs. 7,736 under section 11B of the RST Act. The Deputy Commissioner (Appeals) and, thereafter the Board rejected the appeals of the petitioner. The Board, however, reduced the penalty under section 16(1)(i) of the RST Act from Rs. 37,602 to Rs. 19,000. Hence Revision Petition No. 2 of 1995. 7.. We have heard the learned counsel for the parties and have carefully considered the matter with reference to the law. 8. The following issues arise: 1.. Was the imposition of penalty under section 16(1)(i) of the RST Act justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be termed as the opposite side before the appellate authority. The submission of additional evidence before the appellate authority cannot be disallowed on this ground. As an appellate authority the Deputy Commissioner has the power to admit additional evidence and there is no rule which requires that the assessing authority, the authority of original jurisdiction, should be allowed to rebut it. Additional documentary evidence was admissible before the appellate authority. The appellate authority could, of course, have taken it on record and proceeded to adjudicate on it or remanded it to the assessing authority for it to be taken into consideration. In the instant case the appellate authority who was competent to do so proceeded to dispose of the matter in the light of that evidence and he cannot be faulted for this. 12.. The provisions of sections 5 and 5A of the RST Act and those of section 5 of the CST Act are interlinked. 13.. Section 5 of the RST Act in so far as relevant reads: "5. Rate of tax.-(1) The tax payable by a dealer under this Act.................. Provided that the tax in respect of the sale of any goods which are not included in the Schedule (i) shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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." 17.. In the case before us the petitioner purchased sesame (til) from cultivators and claims to have sold them to dealers outside the State for export. It would be obvious that the purchase from by (or sale by the cultivators to) the petitioner would be exempt from the levy of purchase tax under section 5A of the RST Act only if this purchase took place in the course of export within the meaning of section 5 of the CST Act which it would have been only if this purchase from cultivators was the last purchase preceding the sale or purchase occasioning the export of the goods out of the territory of India, i.e., the petitioner exported it out of the territory of India which is obviously not the case here. The Board, therefore, rightly held that the petitioner was liable to pay purchase tax. The petitioner was not the exporter. 18.. The words "occasioning", "for export", "in the course of export" have all been interpreted judicially so as to have distinct specific connotations. 19.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xport, by the same reckoning the sale anterior to the penultimate sale would at best be a sale for export being preliminary to the actual export. 21.. The requirements of sub-section (3) of section 5 of the CST Act were minutely and exhaustively gone into and spelt out by the Supreme Court in Consolidated Coffee Ltd. v. Coffee Board [1980] 46 STC 164. Excerpts from this have been quoted at some length by the Board. 22.. A plain reading of sub-section (3) of section 5 of the CST Act would show that for a penultimate or last sale preceding the sale or purchase occasioning the export out of the territory of India to be deemed to be in the course of such export the following conditions must be met: (i) There must be an agreement or order for or in relation to such export. (ii) The penultimate sale must occur after such agreement or order. (iii) The penultimate sale must be for the purpose of complying with such agreement or order. 23.. In Consolidated Coffee Ltd. v. Coffee Board [1980] 46 STC 164, the Supreme Court upheld the Constitutional validity of sub-section (3) of section 5 of the CST Act and ruled that "order" must be understood in its commercial sense as an inden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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