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TMI Blog2015 (8) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... ion will operate and exemption provided under provision will come into effect with its full scope and amplitude and State had no authority to whittle down effect of exemption provided under statute by framing any rules or otherwise – Therefore rule 11B(2)(c) was invalid and ultra vires – Decided in afavour of Assesse. - W. P. (C). No. 3843 of 2007 (G) - - - Dated:- 7-3-2014 - RAMAKRISHNA PILLAI A. V. J. Jose Joseph for the petitioner. P. Fazil, Government Pleader, for the respondents. JUDGMENT The petitioner, a limited company registered under the Indian Companies Act, 1956 with registered office at 130, P. B. Marg, Worli, Mumbai and having regional offices at Chennai, Calcutta, New Delhi and Mumbai, has come up before this court challenging the constitutional validity of rule 11B(2)(c) of the Central Sales Tax (Kerala) Rules, 1957 ( the Rules , for short) and exhibits P8 to P10 orders of assessment and for other incidental reliefs. The learned single judge admitted the writ petition on prayer No. 1 alone by which a declaration that rule 11B(2)(c) of the Central Sales Tax (Kerala) Rules, 1957 as invalid and ultra vires was sought. The petitioner was relegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther provisions contained in this Act, every dealer shall, with effect from such date as the Central Government may, by notification in the Official Gazette, appoint, not being earlier than thirty days from the date of such notification, be liable to pay tax under this Act on all sales of goods other than electrical energy effected by him in the course of inter-State trade or commerce during any year on and from the date so notified: Provided that a dealer shall not be liable to pay tax under this Act on any sale of goods which, in accordance with the provisions of sub section (3) of section 5 is a sale in the course of export of those goods out of the territory of India. (1A) A dealer shall be liable to pay tax under this Act on a sale of any goods effected by him in the course of inter-State trade or commerce notwithstanding that no tax would have been leviable (whether on the seller or the purchaser) under the sales tax law of the appropriate State if that sale had taken place inside that State. (2) Notwithstanding anything contained in sub-section (1) or sub-section (1A), where a sale of any goods in the course of inter State trade or commerce has either occasioned the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o which India is a party or under any law for the time being in force, if such official, personnel, consular or diplomatic agent, as the case may be, has purchased such goods for himself or for the purposes of such mission, consulate, United Nations or other body. (4) The provisions of sub-section (3) shall not apply to the sale of goods made in the course of inter-State trade or commerce unless the dealer selling such goods furnishes to the prescribed authority a certificate in the prescribed manner on the prescribed form duly filled and signed by the official, personnel, consular or diplomatic agent, as the case may be. However, section 6(2) was amended with effect from April 1, 2007 as under: 6. (2) Notwithstanding anything contained in sub-section (1) or sub-section (1A), where a sale of any goods in the course of inter State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale during such movement effected by a transfer of documents of title to such goods to a registered dealer, if the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 deals with the purposes for which the State Government may make rules. The power of the State Government to make rules under a Central Excise Act has been considered by the apex court in V. V. S. Rama Sharma v. State of Uttar Pradesh [2009] 7 SCC 234. It was observed by the apex court that the State's power to make rules under the Central Act, extends only to the extent provided for under the Central Act. Therefore, it was submitted that the State Government has no authority under section 13(3) to frame rule 11B(2)(c) requiring production of additional documents than the documents prescribed under section 6(2) to treat the subsequent sale as exempt. The learned Special Government Pleader would submit that the production was intended to protect an innocent dealer and the details asked for are basically necessary even in the Central Sales Tax Act. Therefore, according to the learned Special Government Pleader, there is no inconsistency at all. In this context, the learned Special Government Pleader also referred to section 6A of the CST Act which deals with the burden of proof. In response to the said argument, the learned counsel for the petitioner, inviting my a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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