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TMI Blog2009 (6) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... la reported in [1997] 105 STC 580; AIR 1997 SC 1925 relied upon by the learned Additional Government Advocate in justification of both the impugned orders passed by the learned single judge Printed page 33 supra. and assessing officer. The documents produced are: "1. A xerox copy of the sample of the purchase order placed by ITDC on the foreign buyer, namely, M/s. UDV, M/s. DIAGEO Amsterdam, Amsterdam, Netherland. 2.. A xerox copy of the office order of ITDC with respect to procurement of goods from foreign country for sale at duty-free shops. 3.. Shipping document and invoice raised by M/s. DIAGEO Amsterdam, Amsterdam, Netherland on ITDC." This appeal is filed by Hotel Ashoka questioning the correctness of the order dated February 11, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 2(ab) of CST Act. Therefore, the assessing officer had no jurisdiction to levy the sales tax as the transactions were admittedly beyond the customs frontiers of India. Therefore, the writ petition should have been disposed of on merits by the learned single judge instead of directing the appellant to avail of alternative remedy of appeal. The legal issues required to be decided by the learned single judge are, whether the sales made are in the course of import or export and the assessment order passed is within the jurisdiction of the assessing officer? Since, the learned single judge failed to consider these legal aspects, the order is bad in law and liable to be set aside. Further, learned single judge failed to notice that the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention urged is that it is purely a question of law that arose for consideration before the learned single judge and the same should have been examined in detail. The learned Additional Government Advocate Smt. Geetha Menon, placed reliance upon section 5(2) of the Act with regard to the import of goods within the custom frontiers of India by the appellant and the goods were stored in the bonded warehouse and sold in duty-fee shops situated at International Airport, Devanahalli, Bangalore. According to her, the sales are not in conformity with the statutory provisions of the Act and the law laid down by the apex court in the case of K. Gopinathan Nair v. State of Kerala reported in [1997] 105 STC 580; AIR 1997 SC 1925. In the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Commissioner of Commercial Taxes, Madras Division, Madras reported in [1966] 17 STC 473 (SC); AIR 1966 SC 1216. (3) Binani Bros. (P.) Ltd. v. Union of India reported in [1974] 33 STC 254 (SC); AIR 1974 SC 1510. (4) Mod. Serajuddin v. State of Orissa reported in [1975] 36 STC 136 (SC); AIR 1975 SC 1564. The apex court examined the constitutional provisions of article 286 of the Constitution and sections 5 and 2(ab) of the Central Sales Tax Act at paragraph 12 (paragraph 18 in STC), in the decision referred to in the case of K. Gopinathan Nair v. State of Kerala [1997] 105 STC 580 (SC); AIR 1997 SC 1925. The law is laid down as under (see page 599 of STC): "In the light of the aforesaid settled legal position emerging from the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or purchase can be treated to be in the course of import if there is a direct privity of contract between the Indian importer and the foreign exporter and the intermediary through which such import is effected merely acts as an agent or a contractor for and on behalf of Indian importer. (8) The transaction in substance must be such that the canalising agency or the intermediary agency through which the imports are effected into India so as to reach the ultimate local users appears only as a mere name lender through whom it is the local importer-cumlocal user who masquerades." We have examined the documents produced by the appellant for the limited purpose to find out whether the appellant is entitled to the exemption claimed under section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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