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TMI Blog2020 (6) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... in the hands of the petitioner. The object of the DEPB Scheme is to neutralise the incidence of customs duty on the import content of the products that are exported and such neutralisation is granted by way of a duty credit against the export product. The DEPB Scheme sets out various parameters and conditions to be satisfied by the applicant/holder of the DEPB. Clause 4.3.4 dealing with transferabilty states as follows: '4.3.4 Transferability DEPB and/or items imported against it are freely transferrable. Transfer of DEPB shall however be for import at specified port, which shall be the port from where exports have been made. Imports from a port other than the port of export shall be allowed under TRA facility as per terms and conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication for the Passbook had been made at Bombay, the Passbook had been issued in Bombay, retained in Bombay and thereafter sold in Bombay to a purchaser based in Bombay, duly offered to tax, and rightly brought to tax at Maharashtra. Notwithstanding the objections raised, the impugned assessment has been completed bringing to tax the turnover in the State of Tamil Nadu, which is assailed in the present Writ Petition. 4. Heard Mr.N.Prasad, learned counsel for the petitioner and Mr.V.Haribabu, learned Additional Government Pleader for the respondent. 5. In order to determine the relevant State for fixing taxability, Section 2(33) of the Act read with Explanation (V) thereunder becomes relevant and is extracted below: (33) "sale" with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made; ........... Explanation V.-(a) The sale or purchase of goods shall be deemed for the purposes of this Act, to have taken place in the State, wherever the contract of sale or purchase might have been made, if the goods are within the State - (i) in the case of specific or ascertained goods, at the time the contract of sale or purchase is made; and (ii) in the case of unascertained or future goods, at the time of their appropriation to the contract of sale or purchase by the seller or by the purchaser, whether the assent of the other party is prior or subsequent to such appropriation. (b) Where there is a single contract of sale or purchase of goods, situated at more places than one, the provisions of clause (a) shall apply as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. Dehors the amendment, the sale would come within the concept of sale as available under the CST Act, in which instance we have to look at Section 3, having accepted the sale of a trademark or patent rights as a sale of goods. Though intangible and incorporeal, it has an existence and its situs also has to be pinned down to a particular place with reference to the owner. The situs of the principal place of business, from where the owner of such trademark exercises his right to sell specified goods, under the trademark or enforces his patent rights, which has been obtained by them as a statutory right, is the place where the goods exist. ' 8. There is some discussion/debate on whether the asset in question would fall within the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seller as well as the buyer were all located in Bombay at the time when the transaction in question was finalised, the turnover from the transaction is liable to tax only in Maharashtra. 10. In Yasha Overseas V. Commissioner of Sales Tax and others ((2008) 17 VST 182) the Supreme Court (placitum 64 of the report) states that both DEPB and Replenishment licences (REP licence) are identical in nature and that both licences are exigible to sales tax. There is no dispute on this position. 11. The sole argument of the Revenue is that the petitioner is an exporter, exporting and importing from the Tuticorin Port. Clause 4.3.4 of the Foreign Trade Policy containing the DEPB Scheme makes it clear that the passbook is issued only in regard to a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the revenue. The categories of specific/ascertained goods and unascertained/future goods are separate and distinct from tangible and intangible goods. The assets may be tangible or intangible on the one hand, also simultaneously being specific/unascertained on the other. 14. This Court in the case of P.S.Apparels V. Deputy Commercial Tax Officer ((1994) 94 STC 139), at paragraph 11 thereof, as well as the Supreme Court in the case of Tata Consultancy Services V. State of Andhra Pradesh ((2004) 137 STC 620) have considered scenarios where intangible goods, such as REP licence/DEPB licence and computer software have been reduced to fixed media, such as compact discs holding that once in the form of a physical commodity, the asset as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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