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M/s. Sejwar Traders Versus Commissioner of Commercial Tax, UP., Lucknow. - 2013 (6) TMI 576 - ALLAHABAD HIGH COURT - VAT and Sales Tax
Therefore, in view of the law laid down by the apex Court, in the case of State of Karnataka v. Azad Coach Builders Pvt. Ltd. And another [2010 (9) TMI 879 - SUPREME COURT OF INDIA], the sale by the applicant to the exporter cannot be said to be in the course of export under Section 5(3) of the Central Sales Tax Act. The Tribunal has rightly held so. - Decided against the assessee.
.............. goods have been sold, are different to the goods mentioned in the bill of ladding and Form H . It means that the goods, which had been exported, were different to the goods sold by the applicant. In Form H the foreign buyer s order number and date are not mentioned. Therefore, Form H filed was incomplete and inadmissible for the transaction in dispute. The copy of the order of the foreign buyer has not been produced before any of the authorities to show that the purchases by the exporter from the applicant was inextricably connected with the export and there existed a bond between the contract of sale and the actual export. Such link is missing in the present case. Therefore, in view of the law laid down by the apex Court, in the case referred herein above, the sale by the applicant to the exporter cannot be said to be in the course of export under Section 5(3) of the Central Sales Tax Act. The Tribunal has rightly held so. In the result, the revision fails and is dismissed.
Rajes Kumar,JJ. ORDER This revision is under Section 11 of the U.P. Trade Tax Act (called the Act for short) against the order of the Tribunal dated 19.8.2010 for the assessment year 2004-05. During the year under consideration the applicant has purchased goat raw hide and skins from the unregistered dealer and, after getting it tanned on job work basis, sold the same to M/s. Shalimar Trading Company, Chennai, claimed to be exporter. In respect of the aforesaid sale three Form H have been submitted. Copies of the bill of ladding have also been furnished. The applicant claimed exemption on the purchases of raw hides from unregistered dealer and also on the sales to the alleged exporter on the ground that such purchases preceded to the export sale and it was in the course of export. The assessing authority rejected the claim of exemption on the ground that in Form H the order number and date of the foreign buyer was not mentioned. The goods, which was mentioned in Form H and the bill of ladding were different to the goods purchased and claimed to have been exported. No details relating to the payment for the job work has been furnished. The assessing authority levied the tax on the purchases of goat raw skins under Section 3-AAAA in the assessment under the Act and also treated the sales to the exporter as an inter-State sales and levied the tax under the Central Sales Tax Act (called the Central Act for brevity). Being aggrieved by the two assessment orders the applicant filed appeals before the Additional Commissioner Grade II (Appeals), Commercial Tax, Etawah. The appellate authority has allowed both the appeals and set aside the levy of tax. Being aggrieved by the order of the first appellate authority, the Commissioner of Trade Tax filed two appeals before the Tribunal. The Tribunal, by the impugned order, allowed Appeal No. 228 of 2008 under the Central Act and dismissed the appeal under the Act. Being aggrieved by the order of the Tribunal, the applicant filed the present revision. Heard Sri S.D. Singh, learned counsel for the applicant, and Sri B.K. Pandey, learned Standing Counsel. Learned counsel for the applicant submitted that the applicant has sold raw goat skins after tanning to the exporter. The bill of ladding establishes that the goods have been exported and, therefore, the movement of goods from the destination of the applicant to the destination of the exporter was in the course of export and was deemed export under Section 5(3) of the Central Act and, therefore, it is not liable to tax. Learned Standing Counsel submitted that the applicant has purchased raw goat skins. No detail of expenses relating to the job work has been produced to establish that the tanning has been carried on, on job work basis. In the bill of ladding and Form H different goods are mentioned than the goods sold by the applicant. In Form H the details of the order and date of foreign buyer are not mentioned and, therefore, the applicant failed to establish that the movement of goods was in the course of export. Such sale cannot be treated as deemed export. He submitted that Section 5(3) of the Central Act has been interpreted by the Constitution Bench of the apex Court in the case of State of Karnataka v. Azad Coach Builders Pvt. Ltd. And another reported in (2010) 36 VST 1 wherein it has been held that the sales and purchases between the parties should be inextricably linked with the export of the goods for the claim of exemption under Section 5(3) of the Central Act. He submitted that even the Tribunal has wrongly dismissed the appeal of the Commissioner of Trade Tax under the Act and upheld the deletion of tax under Section 3AAA of the Act because the sale by the present applicant to the exporter is not the export sale and, therefore, the proviso to Section 3AAA of the Act does not apply. Having heard learned counsel for the parties, I have perused the impugned order of the Tribunal and the authorities below. Section 5 of the Central Act reads as follows 5. When is a sale or purchase of goods said to take place in the course of import or export.- (1) A sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India. (2) A sale of purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India. (3) Notwithstanding anything contained in sub-section (1), the last sale or purchase of any goods preceding the sale or purchase occasion.................