9911796707
TMI Blog2003 (2) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessment year 1992-93, the assessee, filed return under the Kerala General Sales Tax Act, 1963 (for short, "the Act"), declaring a total and taxable turnover of Rs. 2,36,25,714.65 and claimed exemption in respect of the entire turnover. There is no dispute that the assessee is entitled for exemption on the sales turnover of gold ornaments exported. We are only concerned with the levy of purchase tax under section 5A of the Act on the purchase turnover of bullion, purchased from the State Bank of India. 2.. The Government, in exercise of the power vested under section 10 of the Act, had issued a Notification S.R.O. No. 361/92 dated March 31, 1992 effective from April 1, 1992, making an exemption on the tax payable under the Act on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be held that the exemption granted for the sale of bullion, under the notification is total exemption, and therefore, there was no liability to tax under section 5(1) of the Act in respect of the sale of bullion effected by the State Bank of India, which is an essential condition for the application of section 5A of the Act. 3.. However, in the dissenting order of the departmental member it was held that the exemption to the State Bank of India is not total exemption, and therefore, the provisions of section 5A of the Act are attracted. The Department, being aggrieved by the majority view of the Tribunal, has filed this revision. 4.. Learned Government pleader appearing for the revision petitioner submits that the issue raised in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngaged in the manufacture and export of gold ornaments and the assessee had manufactured gold ornaments by using the bullion so purchased and exported the same to outside India. Counsel also submits that the Notification S.R.O. No. 361/92 was issued only to promote export and to benefit the exporters of gold ornaments like the assessee. Counsel, on the basis of this factual situation, submits that so far as the bullion, which is dealt with the State Bank of India under the EXIM Policy, is concerned, it must be treated as a separate category, different from the bullion, which are available inside the State. Counsel submits that the exemption granted to the State Bank of India, in the present case, is total. In that view of the matter, one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale or purchase as the case may be, of goods specified below payable by persons or units with regard to their turnover subject to the conditions specified therein, namely: (4) On the sale of bullion and jewellery by non-resident Indians or Banks or registered dealers in jewellery of gold, silver and platinum group of metals subject to the condition that the seller should produce a certificate in the appended, form obtained from the purchaser." 7.. In order to attract the provisions of section 5A(1) of the Act, the following conditions have to be satisfied. (1) there must be a purchase by a dealer in the course of his business from a registered dealer or from any other person any goods; (2) the sale or purchase of the said goods is liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by persons or units with regard to their turnover subject to the conditions specified therein. Clause (4) of the notification is relevant for the purpose of this case. It provides that there is exemption in respect of tax payable under the Act on the sale of bullion and jewellery by non-resident Indians or Banks to registered dealers in jewellery of gold, subject to the condition that the seller should produce a certificate in the form appended to that notification, obtained from the purchaser. Export of the gold jewellery made out of the bullion so purchased is not a condition for grant of exemption under the notification, nor is there any obligation to sell the bullion to an exporter. Bullion is a commodity available in the market for sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese circumstances, we are of the view that the decision of the division Bench in Supreme boards case [1992] 111 STC 305, is squarely applicable. In Supreme Board's case [1992] 111 STC 305 (SC), mentioned above a similar question arose as to whether purchase tax under section 5A can be levied from a person who purchase taxable goods from a dealer who is a newly set up small scale industrial unit eligible for exemption on the strength of the notification issued under section 10 of the Act. The Division Bench after adverting to the provisions of section 5A, the Notification S.R.O. No. 968 of 1980 granting exemption to new small-scale industrial units, arguments advanced by both the parties and after considering the decisions of the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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