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TMI Blog2012 (6) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... ok place for the purpose of complying with the agreement or order with relation to such export. When the export sales are not exigible under the CST Act, requiring to produce H forms which is relevant in the context of situation under section 5(3) would be unauthorised. Any assessment under such wrong premise would also be unauthorised by law. Be it reiterated that export sale is not in the course of inter-State trade or commerce and levy of tax thereon is unsustainable. In all matters, the CTO misdirected himself and passed the assessment orders. A misdirection in law is a jurisdictional error, and therefore, the impugned assessment orders cannot be sustained. They are liable to be set aside. - Writ Petition Nos. 16662, 17660, 18092 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It appears, the CTO was under the impression that the petitioner should produce H forms as per rule 12(10) of the Central Sales Tax (Registration and Turnover) Rules, 1957 ( the Rules ). The petitioner contends that the show-cause notice was not issued, and therefore, they could not file objections. Be that as it is, by impugned order dated March 31, 2012, the CTO subjected the entire turnover to four per cent CST and demanded ₹ 4,13,46,659. This order is assailed in the writ petition. The learned senior counsel appearing for the petitioner in W.P. No. 18092 of 2012, Sri C. Kodandaram, submits that the export sale of goods is not exigible to CST; the question of a dealer producing H forms would arise only when the sale is effected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... describes an inter-State trade or commerce. The CST Act is not an Act in pith and substance levying taxes and duties on exports and imports. Therefore, all the export sales are not exigible under the CST Act. As per charging section 6 of the CST Act, every dealer effecting sales of goods in the course of inter-State trade or commerce shall be liable to pay the tax under the CST Act. The proviso to section 6(1) of the CST Act, however, exempts the sale of goods in the course of export of those goods out of territory of India. The proviso specifically refers to the sale of goods in accordance with the provisions of section 5(3) of the CST Act. Therefore, it is necessary to quote section 5 of the CST Act, which reads as under: 5. When is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale or purchase occasioning the export of goods out of the territory of India shall be deemed to be export sale, if such sale took place for the purpose of complying with the agreement or order with relation to such export. Rule 12(10) of the Rules requires a dealer to produce before the assessing officer a certificate in form H duly filled and signed by the exporter along with the evidence of export of such goods. It only takes care of intermediate transactions and section 5(3) of the CST Act read with rule 12(10) of the Rules does not deal with direct export sale to a buyer outside the country, which is taken care by section 5(1) of the CST Act. Rule 12(10)(a) of the Rules reads as under: Prescription of goods for certain purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th which we are in respectful agreement. A perusal of the assessment files discloses that the assessing authority was under the impression that the transactions in question are sales preceding the export out of India and therefore in order to apply section 5(3) it was incumbent on the assessee to produce the purchase order or the agreement. This assumption is wholly incorrect. Sub-section (3) of section 5 comes into play only in respect of sales or purchases preceding the export of goods out of the territory of India, which is not the case here. The present one is a clear case of the direct export of granites by the assessee to foreign buyers. The transaction itself had occasioned the export and as there was no intermediate transaction, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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