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TMI Blog1998 (9) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... hich claim has been rejected and the figure included in the sales of the petitioner taxable @ 12% during the year 1994-95 vide order of assessment Annexure-C. 4. Shri Krishna Engineering Co. the petitioner in CWP 3154/97 made a similar claim of export sales having been made to Nepal for the period of assessment 1992-93 which has been disallowed and the figure included in the sales liable to tax vide assessment orders Dated 27.3.97 Annexure-D collectively. 4.1 For the purpose of completing the assessment for the year 1992-93 the petitioner was asked to produce documentary proof of export to Nepal. through land frontier. The petitioner approached the office of the Additional Commissioner of Customs, Muzafarpur, who vide letter dated 28.4.1997 informed the petitioner that for documentary proof export to Nepal through land frontier the petitioner may obtain certificate from the respective land customs station from where the goods had crossed the Indian Border and entered Nepal. 5. S.K. Jain, proprietor of M/s. Puran Chand and Sons the petitioner in CWP 3606/97 claimed deduction of a figure of sales of ₹ 3,11,466/- shown as exports made to Nepal during the period of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shipping bill/bill of Export No. and date of certificate of Custom Officer certifying that the goods have crossed the frontier of India; While all these proofs are important the most important is the last one i.e. the certificate of the custom officer certifying that the goods have crossed the customs frontiers of India into Nepal or Bhutan. 10. Therefore, the Assessing Authorities are to ensure that these documents are supplied by the exporters. Certificates from Nepal or Bhutan Govt. Authorities cannot be taken into account as they are issued by a foreign government and cannot be cross verified. 11. No other circumstantial evidence can be accepted particularly in the absence of certificates of India Customs Authorities. Similarly the proof of receipt of payment which underscores that India has not lost out in the process is the other substantial proof. sd/- (B.P. Misra) Commissioner: Sales Tax. 6.3 OFFICE OF THE COMMISSIONER OF SALES TAX BIKRIKAR BHAWAN: MSO-II, NEW DELHI-2 F.No. 3(230)/92-PPR/1275-1548 Dated :13.5.97 Circular No. 2 of 1997-98 To All Assessing/Appellate Authorities, Sales Tax Department, New Delhi., Reg. : Verification of Export Certificates issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above said instructions issued by the Commissioner of Sales Tax and in the event of their failure to fulfill the directions contained in the said circulars the assessing authorities simply refuse to look into the evidence as above said. They do not even apply their mind if the documentary evidence made available by the dealers as above said is sufficient to satisfy them of exports to Nepal having been really made by the dealers. 8. With regard to the Reserve Bank of India export Code No. it was submitted that for export to Nepal no foreign exchange is involved and therefore no code No. was required from the R.B.I. with regard to the certificate from the Indian Customs Authorities, it was pointed out that the goods were sent through transporters who in turn have the goods cleared and delivered to the purchasers in Nepal. The tax authorities of the State of U.P. through which the goods have to pass while moving from Delhi to Nepal, have certified the goods having entered into the State of U.P. In transit and left the State of U.P. at the Indo-Nepal Border at Sunauli Maharajganj. It is further submitted that the dealers are producing certificates issued by Customs Officer of His M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable under this Act in respect of the same, the proper office may make an order permitting clearance and loading of the goods for exportation. 9.3 Attention was also invited to the Shipping Bill and Bill of Export (From) Regulations, 1971 wherein it is provided that Bill of Export is to be presented by an exporter of goods in the forms specified in the Regulations. 9.4 It was submitted by the learned counsel for the respondents that in view of the above said provisions and the procedure laid down by the Customs Department for dealing with the goods crossing the Indo-Nepal Border it should not be difficult for the petitioner to obtain documentary evidence in proof of such exports from India to Nepal covering sales transactions in respect of which the exemption was being claimed. 10. The learned counsel for the petitioners submitted that in framing the assessment, the assessing authority mechanically followed the directions of the Commissioner without considering the material placed on record. He further contended that by issuing directions and instructions to the Assessing Authorities and Appellate Authorities under the Act through the aforesaid circulars the Commissioner of Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of the import of the goods into or export of goods out of the territory of India. Explanation: Section 3, 4 and 5 of the Central Sales Tax Act, 1956 (74 of 1956) shall apply for determining whether or not a particular sale or purchase takes place in the manner indicated in clause (i) clause (ii) or clause (iii) of this section. 12. From a reading of the aforesaid provisions, it is clear that the sales in the course of export of goods out side India are not liable to tax. No law of a State can authorise imposition of tax on such sales. There is no provision in the Constitution, Central Sales Tax Act and Delhi Sales Tax Act or in the rules made thereunder laying down any particular or specific mode of proof for determining claim of non-liability to tax on transactions involved in export of goods outside India. The assessee can establish export of goods outside India by adducing evidence such as the agreement or contract or order placed by the foreign supplier, or the bill/invoice of the document or the despatch documents, namely railway receipt/goods receipt of transporters or airways bill from the airlines, or Bill of Lading and so on which would enable the assessing author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable to produce the requisite certificate, the claim for deduction on account of the export sales was disallowed. The Delhi Sales Tax Act and the rules, the Central Sales Tax Act and the Constitution of India, do not prescribe any particular declaration/certificate only being accepted as evidence for establishing export. Insistence on a certificate from the Indian Customs Authority as the only acceptable piece of evidence while ignoring all the other evidence on record and denying relief to the assessee is without sanction of law and is, therefore, liable to be struck down. 15. The officials of the Sales Tax Department are administrative authorities. However, such of the officials as are vested with jurisdiction to assess the business transactions of the dealers to tax, discharge function which is judicial in nature. The function though administrative is obliged to be performed with judicial approach and hence becomes quasi-judicial. The basis requirements of justice have to be complied with. Rules of natural justice have to be followed. Objectivity has to be maintained. The conclusions arrived at by the assessing authorities have to be based on the material available on record a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve held that a quasi-judicial power cannot be controlled by the directions issued by the Board. No authority, however high placed can control the decision of a judicial or a quasi-judicial authority. That is the essence of our judicial system. Their Lordships have also quoted from Mahadayal Premchandra Vs. CTO, Calcutta & Anr., where in Assessing officer acting on the basis of instructions from superiors was held to have vitiated the entire proceedings. Their Lordships have further held: "That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authority in the matter of deciding disputes between the persons who are called upon to pay duty and the department. It is true that the assessing authorities as well as the appellate authorities are judges in their own cause; yet when they are called upon to decide disputes arising under the Act they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the direction given by other. Then it is a misnomer to call their orders as their judgments; they would essentially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that there was no specific statutory provision as such, but the instructions were issued under the general administrative power vesting in the superior officers in the hierarchy of the system and were issued for safeguarding the public interest and the interest of the revenue in as much as large scale evasion of sales tax in the name of export transactions was brought to their notice. How so ever laudable may be the intentions of the Commissioner of Sales Tax, we are very clear in our mind that such instructions could not have been issued as take away the discretion vesting in the assessing authorities discharging quasi-judicial function of making assessments. 28. It may be that large scale evasion of Sales Tax by unscrupulous traders was brought to the notice of the Commissioner of Sales Tax, who on the information made available to him formed an opinion that the traders were attempting to convert local sales or intra-state sales into sales in the course of export. Attention of the assessing authorities could have been invited to this phenomenon cautioning them to be on their guard against such attempts and design. The assessing officers having become aware of such atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record of each individual case. To put it in the context of the cases at hand, the assessing authority could not have been obliged to hold the goods having not been exported to Nepal solely for non-production of the requisite certificate from the Indian Custom Officers; even in the absence of such certificates the assessing authority should not have been inhibited from holding the sale transactions to be export sales if on the material available and brought on record by the assessee it was possible to hold so. 31. To sum up, the Commissioner of Sales Tax being so placed in the hierarchy of the department can issue instructions to his subordinates but in the administrative field only. No provision in the law of sales tax has been brought to our notice by the learned counsel for the respondents equivalent to or pari materia with Section 37B of the Central Excises Act, 1944 or Section 119 of the Income-tax Act, 1961. There is nothing wrong if the Commissioner of Sales Tax issues such circulars which bring to the notice of this subordinates things like changes in legislation, law declared by the Supreme Court, binding precedents laid down by the High Courts and so on, so as to enlight ..... X X X X Extracts X X X X X X X X Extracts X X X X
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