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TMI Blog1965 (2) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... s tax in respect of the above turnover because, firstly, the assessee was not a dealer within section 2(f) of the Rajasthan Sales Tax Act (Rajasthan Act XXIX of 1954) with respect to this turnover, and secondly, because the sales were in the course of import within Article 286(1)(b) of the Constitution. Although the Sales Tax Officer set out the facts of the case relating to the second ground, he deemed it sufficient to assess this turnover on the ground that the assessee was a dealer within section 2(f) of the Rajas- than Sales Tax Act, without adverting to the second ground. The facts on which the assessee had relied upon to substantiate his second ground were these. The Zeal-Pak Cement Factory, Hyderabad (Pakistan), hereinafter called the Pakistan Factory, manufactured cement in Pakistan. The Pakistan Industrial Development Corpora- tion, hereinafter called the Pakistan Corporation, entered into an agreement with M/s. Milkhiram and Sons (P.) Ltd., Bombay, for the export of cement manufactured in Pakistan to India. The State Trading Corporation of India entered into an agreement with the said M/s. Milkhiram & Sons for the purchase of, inter alia, 35,000 long tons of cement to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular quantity as per enclosed railway receipt and invoice." The State Bank of India, Karachi, would endorse the railway receipt in favour of the consignee and sent it to him by post. The consignee would take delivery either by presentation of the railway receipt or by giving indemnity bond to the Station Master undertaking to deliver the railway receipt on its receipt. The Sales Tax Officer did set out most of these facts and the contentions of the assessee in the assessment order but disposed of the case with the following observations: " All the above went to prove that the assessee was an agent of the non-resident dealer for the supplies in the State. The assessee was an importer and hence submitted an application to the Customs Authority for the same. It booked orders and issued sale bills. Under the terms of agreement of appointment of agent, sale was to be effected by the agent. Again while obtaining orders from the buyers under condition 5 sales tax was to be paid by the buyers to the assessee. Thus to all intents and purposes the assessee is a dealer who is liable for payment of sales tax to the State. They have rightly collected this amount from the buying dealers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yers in Rajasthan when the goods had not reached the territory of India and were in the course of import. In view of the authority of their Lordships of the Supreme Court in J.V. Gokal and Co. (Private) Ltd. v. The Assistant Collector of Sales Tax (Inspection) & Others [1960] 2 S.C.R. 852; 11 S.T.C. 186., it must be taken that the sale took place when the goods were in the course of import and they should not be liable to the payment of sales tax by virtue of Article 286(1)(b). "In the result, the High Court quashed the order of assessment in so far as it sought to levy tax on the turnover in dispute. The Sales Tax Officer, Jodhpur, and the State of Rajasthan having obtained certificate of fitness from the High Court filed this appeal. The learned Advocate-General has raised two points before us: First, on the facts of this case the High Court should have refused to entertain the petition, and secondly, that it has not been established that the cement was sold in the course of import within Article 286(1)(b). Regarding the first point, he urges that an appeal lay against the order of the Sales Tax Officer; no question of the validity of the Sales Tax Act was involved and the taxa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t contested that the ultimate buyer took delivery of the goods without producing the railway receipt by virtue of special arrangements entered into with the railway, and according to him, it is only when the delivery was taken by the buyers in Rajasthan that the title passed. By that time, according to him, the course of import had ceased. We do not think it necessary to consider the various arguments addressed by the learned Advocate-General or the soundness of the view of the High Court on this point, because we are of the opinion that the High Court should not have gone into this question on the facts of this case. The Sales Tax Officer had not dealt with the question at all, and it is not the function of the High Court under Article 226, in taxing matters, to constitute itself into an original authority or an appellate authority to determine questions relating to the taxability of a particular turnover. The proper order in the circumstances of this case would have been to quash the order of assessment and send the case back to the Sales Tax Officer to dispose of it according to law. Under the Rajasthan Sales Tax Act, and other Sales Tax Acts, the facts have to be found by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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