9911796707
TMI Blog1998 (11) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... als particularly the sale of chemicals to the value of Rs. 87,569 concerned in T.C.R. No. 330 of 1997 and sale of a van by the assessee in T.C.R. No. 363 of 1997 for a sum of Rs. 2,60,000 and these amounts have been included in the turnover for assessment and the lower Appellate Tribunal has held that these amounts are taxable, in the memorandum of the revision the assessee has not raised any point in respect of these assessments and the learned Senior Counsel Mr. C. Natarajan, also did not argue anything about the levy of tax on those turnovers. His argument is only on the question of tax for the shortage in shipping the prawns. Therefore, we are not interfering with the orders of the Appellate Tribunal in respect of its finding for the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the unexplained shortage of 12,869.950 kgs. 5.. Under section 5(3) of the Central Sales Tax Act, 1956 the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods within the territory of India shall be deemed to be in the course of such exports if such last sale or purchases took place for the purposes of complying with the agreement or order or in relation to such export, is not taxable. It is not in dispute that these petitioners/assessees are exporters and their purchases were last purchases and therefore it should be deemed to have been in the course of export, entitling for exemption of sales tax. In view of the provisions of section 5(3) of the Central Sales Tax Act, the assessing offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atarajan, appearing for these assessees contended that the assessing officer has not found anywhere that the unshipped quantity has been locally sold or utilised for any other purposes and the contention of the assessees that the shortages are due to the wastage of the inedible portion, has not been rebutted by any counter argument, but all along the findings of the appellate authorities also is to the effect that there is no formula in the statute to give relief on such wastages and thereby the assessees are bound to pay the tax for the said shortage which was not exported. 7.. The learned Senior Counsel Mr. C. Natarajan, has cited a series of decisions in which, courts including the apex Court have accepted the exemptions even for the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference in the weightage in the cotton purchased and sold after ginning and the difference was cotton seeds removed in the processing. The apex Court held that the assessee was entitled to claim exemption of the entire purchase price of the cotton, sold by him to the registered dealers and the retention of the cotton seeds which gave the difference in the weight could make no difference to claim the deduction. In G.M. Patel v. State of Karnataka reported in [1987] 65 STC 56 (Kar); (1984) 11 STL 30 (Kar), it is held that if the assessee, a cotton dealer, is able to prove that he had sold everything in the form of bales and cotton seeds, he cannot be taxed merely on the ground that there was a difference in the weighment between the purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee contended that there was wastage during the course of cleaning and packing for export. The Tribunal accepted the contention of the assessee that the wastage was not assessable. The Bench of the High Court observed: "The opinion of the Tribunal that while cleaning, cutting and freezing as also packing, some marginal loss was bound to occur is both logical and reasonable. The court cannot ignore the fact that such loss is bound to occur while packing a commodity like prawns after cleaning, etc. Considering the total turnover of the assessee for the years 1977-78 and 1978-79 the loss of Rs. 1,23,951 and Rs. 1,23,775 respectively is only marginal and the Tribunal rightly granted the benefit to the assessee in respect of those addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtage mentioned by the assessee could be the real shortage with reference to the quantity purchased by the assessee. In T.C.R. No. 329 of 1997 the loss is only 13.219 kgs. which is only 7 per cent in the total purchase. In T.C.R. Nos. 363 and 364 of 1997 as the loss is 3,678 and 70.159 kgs., the wastage is only 5.3 per cent and 2.4 per cent. In T.C.R. No. 59 of 1997 the shortage of 12.870 kgs. works out at 10.8 per cent. We feel that this percentage cannot be said to be on the higher side and there is every possibility for the loss of this quantity and therefore the levy of tax in T.C.R. Nos. 329 of 1997, 363 of 1997, 364 of 1997 and 59 of 1997 is not proper and has to be set aside. 10.. But in T.C.R. No. 330 of 1997 we hesitate to accept ..... X X X X Extracts X X X X X X X X Extracts X X X X
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