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TMI Blog2001 (2) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... rms including the term "export" were not defined under the provisions of either the APGST or CST Act. In exercise of the powers conferred under article 286 of the Constitution of India, the Parliament enacted the Customs Act to deal with imports and exports where all the relevant terms in respect of imports and exports are defined and further in exercise of such power the authorities under the said Act have treated the disputed sales as export sales. Therefore, the said adjudication is binding on the authorities under the APGST as well as CST Acts and hence the impugned orders are liable to be set aside. The learned counsel also contended that there are no provisions relating to the procedure or power to determine whether a particular transaction is a sale in the course of export out of the territory of India. There are no provisions in the APGST or CST Act relating to the procedure. In the absence of such clear provisions or power to adjudicate whether particular sales are effected in the course of exports, the adjudication made under the Customs Act, is binding on the authorities. Hence, the authorities under the State Acts are not justified in not accepting the claim of the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider the case of the petitioner on merits. 8.. According to the petitioner/dealer, the import of spares is regulated by the Customs Act, which contains the definitions of various terms relating to the imports and exports and the importer is not free to remove the imported goods without the prior order of the customs authorities. Even for export of the same also the delivery of goods has to be effected in accordance with the provisions of the Customs Act through the officers or under the supervision of the officers under the Customs Act. Further, according to the petitioner, the customs authorities have treated the disputed sales as sales in the course of exports. Therefore, it is not open to the respondentauthorities not to treat them as export sales. The above contentions are to be noted only for rejection. First of all, the provisions of the APGST and CST Acts are independent codes by themselves and the authorities are empowered to adjudicate the issues that arise for consideration. Therefore, it is not open to the petitioner to contend that the adjudication made under the provisions of the Customs Act is binding on the authorities under the State Acts. 9.. Coming to the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er States, to the skipper in Visakhapatnam Fishing Harbour to the trawlers. It is evident that all the sales made by the dealers are sales made within the State and the sales turnover shown against export sales and high sea sales are conducted as first sales in the State." 11.. Basing on the above finding the claim of the petitioner was rejected by the Appellate Deputy Commissioner as well as by the Sales Tax Appellate Tribunal. In order to prove that a sale had occasioned in the course of export, one has to prove not only that the goods have moved from a place inside India to outside, but to a place outside India. Mere taking of the goods out of India does not amount to export of the goods. In the present case, spares sold by the petitioner to the trawlers were taken to the high seas by the trawlers for their use during the course of operation. Such transaction cannot be treated as sales in the course of export. 12.. The learned counsel relied upon the decision in the case of Sun Industries [1988] 71 STC 149 (SC). In that case, the respondent shipped certain goods at Calcutta intended for delivery at Colombo. The ship proceeded on the voyage leaving the Indian territorial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome "Explanation sales", the power to tax did not exist. It was held that (1) that to exclude the powers of taxation of the State of West Bengal, the appellants must be able to point out some other State where the goods could be said to have been delivered as a direct result of the sale for the purpose of consumption in that other State and as the appellants had not done so they could not invoke the explanation to article 286(1)(a); (2) that aviation spirit loaded on board an aircraft for consumption, though taken out of India, was not exported since it had no destination, where it could be said to be imported and so long as it did not satisfy this test it could not be said that the sale was in the course of export. Moreover, aviation spirit was sold for the use of the aircraft and the sale was not even for the purpose of export. The sales therefore did not come within article 286(1)(b); (3) that all the elements of sale including delivery and payment of price took place within the State of West Bengal and the sales were thus completely within the territory of that State. The sales were therefore liable to be taxed under the Bengal Motor Spirit Sales Taxation Act, 1941. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort and as such was not exigible to tax. Negativing the contention of the dealer, this Court held, on the facts and circumstances of the case, that the sale took place within the State and the sale was not in the course of export and was exigible to tax. The next decision is in the case of the same assessee, i.e., Madras Marine and Co. v. State of Madras [1986] 63 STC 169, which was rendered by the apex Court. The assessee, who is a dealer in stores, was doing business in the ship chandlers, imported goods from foreign countries on the undertaking to supply them only to foreign going vessels and/or to diplomatic personnel and to receive the goods in customs bonded warehouses. After import of the goods the company kept them in bonded warehouses in the State of Tamil Nadu. On receipt of an order from the captain of a foreign bound ship requiring ship stores, the company supplied the goods on board the ship. The company contended that no sales tax was payable on such sales under the Tamil Nadu General Sales Tax Act, 1959, because (i) the goods were all intended for re-export only and were at all times in a bonded warehouse, the delivery was on board a foreign going ship and the good ..... X X X X Extracts X X X X X X X X Extracts X X X X
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