TMI Blog2014 (9) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... are not effected and the purchasing dealer imports goods for purposes of manufacture, then again the very same principle would apply. In any event, any defalcation or violation of the declaration, at the hands of the purchasing dealer, who issued the 'C' Form; would be liable to be proceeded against only against that purchasing dealer and not against the selling dealer; in the absence of any collusion being found against the selling dealer within the State. - Decided in favour of assessee. - WP (C). No. 31086 of 2012 (I) - - - Dated:- 8-7-2014 - K. Vinod Chandran,JJ. For the Petitioner : Sri. S. Anil Kumar, Sri K. S. Hariharan Nair, Sri K. Umamaheswar For the Respondent : Sri. Boby John ORDER The question raised in al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d inter alia for manufacture or for processing or for resale, which declaration is made by the purchasing dealer, by way of 'C' Form. 3. The Sales Tax Revision, the order of which is produced in W.P.(C).No.31086 of 2012 as Exhibit P5, indicates that therein no 'C' Forms were produced to sustain the claim of concessional rate. The Division Bench dismissed the revision, upholding the fact finding of the Tribunal. However, while dismissing the same, the Division Bench made an observation as to how 'C' Form would be applicable for transfer of credit in the Pass Book issued under DEPB Scheme. Definitely the issue did not arise for consideration before the Division Bench in the said Sales Tax Revision. Therein, no ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slight overview of the issue has to be taken note of, at this juncture. Vikas Sales Corporation v. Commissioner of Commercial Taxes [(1996) 4 SCC 433] dealt with the issue whether transfer of Import Licence [Replenishment (REP) Licenses], by its holder, to another person constitutes a sale of goods or not. While rendering the judgment, copious reference was made to the decision in H.Anraj v. State of T.N. [(1986) 1 SCC 414]. The said decision of the Hon'ble Supreme Court was prospectively overruled in Sunrise Associates v. Govt. of NCT of Delhi [(2006) 5 SCC 603]. Hence, the sustainability of the dictum in Vikas Sales Corporation [supra] came up for consideration again before a three Judge Bench in Yasha Overseas (supra). The Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee was in the nature of debt. The credit represented an ascertained sum of money and it was clearly a debt even though it was not refundable or payable in cash. A debt that could be discharged by way of a set-off is nonetheless a debt. In this case the credit represented a conditional debt that could be discharged by way of a set-off against the duty payable on a future import. Being in the nature of debt, the DEPB credit plainly fell within the first part of the definition of actionable claim. 57. Learned counsel alternatively submitted that even if the credit is seen not as a debt but as movable property, the sale of DEPB only involved the transfer of the right to claim credit. The credit not being in possession of the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be effected on the strength of 'C' Forms, if the purchasing dealer intends it inter alia for sale or for purposes of manufacture. Even if resale of DEPB entitlements are not effected and the purchasing dealer imports goods for purposes of manufacture, then again the very same principle would apply. In any event, any defalcation or violation of the declaration, at the hands of the purchasing dealer, who issued the 'C' Form; would be liable to be proceeded against only against that purchasing dealer and not against the selling dealer; in the absence of any collusion being found against the selling dealer within the State. In the light of the above, the notices issued in W.P.(C). Nos.31086 of 2012 [Exhibit P4 series], ..... X X X X Extracts X X X X X X X X Extracts X X X X
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