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TMI Blog2009 (11) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... g needless and clearly avoidable emphasis on the substitute bills of export. The nature of the transaction, namely, it is sale in course of export, is not in doubt. We also notice from a perusal of the three orders in question that the learned authorities have not applied themselves to the merits of the materials produced by IOC, and have rejected the petitioner's claim for exemption outright on the ground of non-production of the bills of export. We are, therefore, of the view that the impugned order is not sustainable in law. - - - - - Dated:- 4-11-2009 - KATRIAR S.K. AND KISHORE KUMAR MANDAL , JJ. S.K. KATRIAR J. This writ petition under article 226 of the Constitution of India is directed against the order dated March 4, 2005 (annexure 3), passed by the Commercial Taxes Tribunal, Bihar, Patna, in Revision Case No. PT-430/00 and PT-430A/00 (Indian Oil Corporation v. State of Bihar), whereby the revision application preferred by the petitioner in terms of section 46 of the Bihar Finance Act, 1981 (hereinafter referred to as, the Bihar Act ), has been dismissed and the assessment orders and the appellate order have been upheld. The primary question for consideration in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption from payment of tax under the Act has been denied to the petitioner on the ground that the primary evidence to support its case of export to Nepal has not been produced. We wish to make it clear that the impugned order deals with a number of issues and the present writ petition is confined to the said question. The petitioner (IOC) submitted its returns for the period 1995-96. During the course of assessment proceedings, it produced before the learned assessing officer the following documents: (i) the treaty (annexure 6). (ii) the agreement between IOC and NOC (annexure 4). (iii) a certificate in support of import of petroleum products issued by NOC to the petitioner, and (iv) all Bhansar receipts issued by NOC which contain the details of export. On a consideration of these materials and the returns of the petitioner, the learned assessing officer came to the conclusion that the bills of export, which is the primary evidence to prove the factum of export as well as the quantity of the products exported has not been produced. The claim for exemption from payment of tax under the Bihar Act has, therefore, been rejected. The petitioner's appeal has al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty of export has been entrusted to IOC, and the duty of import has been entrusted to NOC. The two instrumentalities of the Governments entered into an agreement (annexure 4), stating therein the detailed procedure to be followed in such matters. Article 286 of the Constitution of India provides that no law of State shall impose, or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place in the course of import of the goods into, or export of goods out of, the country of India. Taking note of this constitutional provision, section 7 of the Bihar Act has been enacted as follows: 7. Exemption. (1) No tax shall be payable under this part on sales or purchases of goods which have taken place (a) in the course of inter-State trade or commerce; (b) outside the State; (c) in the course of import of goods into, or export of the goods out of the territory of India. (2) The provisions of the Central Sales Tax Act, 1956 (LXXIV of 1956) shall apply for determining when a sale or purchase of goods shall be deemed to have taken place in any of the ways mentioned in clauses (a), (b) or (c) of sub-section (1). (3) The S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position that institutional safeguards must be provided to ensure that the exact amount of goods exported to a different country is, for purpose of exemption has to be determined by the learned assessing officer to his satisfaction to avoid any mischief. It is theoretically a possible situation that in order to earn the benefit of exemption, there may be pilferage of the stocks in Bihar, or while the goods are in transit from India to Nepal. Therefore, the learned authorities under the Act are free to satisfy themselves that the quantity of exports as per the returns of IOC really left the Indo-Nepal boarder, and were really received by NOC in Nepal, and were the result of genuine and bona fide transaction. Rule 13 of the Central Excise Rules, 1944, reads as follows: 13. (2) The Central Government may, from time to time by notification in the Official Gazette, permit export of specified excisable goods in bond without payment of duty from a factory of manufacture or warehouse to Nepal or Bhutan subject to such conditions or limitations as regards the class of goods, destination, mode of transport and other matters as may be specified therein. Section 2(5) of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted before C. Ex Officer-in-Charge of warehouse/endorsed copy sent to Indian Land Custom Station Officer in sealed cover thru exporter/after endorsement the custom officer will return the same to the exporter/the exporter will submit the same to Central Excise Officer-in-charge of warehouse within three months from date of removal Presented before C. Ex Officer-in-Charge of warehouse/sent to Central Excise Officer who has accepted the bond. Presented before C. Ex Officer-in-Charge of warehouse/retained by Central Excise Officer in charge of warehouse. The appropriate Government has in terms of sub-rule (2) of rule 13 of the Central Excise Rules, 1944, prescribed the procedure for export of petroleum oil and lubricant products to Nepal marked annexure 7. It appears to us on a perusal of the same that the substitute bills of export after the same are submitted by IOC at the inception of the procedure, have to pass through customs authorities, excise authorities, etc., of the Indian Government, as well as of the Nepalese Government. It is, therefore, a possible situation that IOC may not have the occasion to retain a copy of the same or h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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