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TMI Blog1966 (1) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... tan. With regard to this supply of coal to Pakistan, the appellant has been made liable for sales tax under the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Act). The appellant contended before the Sales Tax Authorities, that it was not liable to pay sales tax on the coal supplied to East Pakistan, as it was entitled to exemption under section 5(2)(a)(v) of the Act and also under Article 286(1)(b) of the Constitution, as the coal was meant for export, and was in fact exported out of the Union of India. These contentions of the appellant were overruled and rejected, firstly by the Commercial Tax Officer, and secondly by the appellate authority before whom an appeal was preferred against the order of the Commercial Tax Officer, and finally by the Additional Commissioner, Commercial Taxes, who disposed of a revision application made by the appellant under section 20(3) of the Act. Being aggrieved by the orders passed by the Sales Tax Authorities, the appellant moved an application under Article 226 of the Constitution and obtained a rule which was discharged by the judgment and order hereinbefore mentioned. Mr. Noni Coomar Chakravarty, learned Advocate for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... casioned export or import of the goods, as the case might be, out of or into the territory of India, came within the exemption under Article 286(1)(b). It was further held that a sale by export involved a series of integrated activities commencing from the agreement of sale and ending with the delivery of the goods for transport out of the country by land or sea, and such a sale could not be dissociated from the export without which it could not be effectuated, and the sale and the resultant export formed parts of a single transaction. Of the two integrated activities which together constituted an export sale, whichever occurred first could well be treated as taking place in the course of the other and even where the property in the goods passed to the foreign buyers and the sales were thus completed within the State, before the goods commenced their journey, the sales must nevertheless be regarded as having taken place in the course of export, and were, therefore, exempt under Article 286(1)(b) of the Constitution. Relying on this decision, it was argued that even if it was held that the sale took place at Calcutta, such a sale could not be dissociated from the export to Pakistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Government of East Pakistan, and the export therefore could not be regarded as an independent transaction but must be treated to be a part of the transaction of sale, whoever was the purchaser of the coal. Mr. B. C. Dutt, learned Additional Government Pleader appearing for the respondents, argued that the appellant sold the coal to the Government of India in West Bengal, and the latter exported the same to East Pakistan. Therefore, it was argued, that the transaction of sale which took place in West Bengal was liable to be taxed under the Act. It was further argued that there was no contract of sale between the appellant and the Government of East Pakistan, and therefore exemption from sales tax could not be claimed either under section 5(2)(a)(v) of the Act or under Article 286(1)(b) of the Constitution. There was nothing to show, it was argued, that the relationship of buyer and seller existed between the Government of East Pakistan and the appellant. On the contrary, the materials disclosed quite plainly proved, it was further argued, that the appellant sold the coal to the Government of India, the bill was drawn in the name of the Deputy Commissioner (Production), Minist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arded as having taken place in the course of export and for that reason such sale must be held to be exempt under Article 286(1)(b) of the Constitution. Such a transaction also attracts the exemption provided in section 5(2)(a)(v) of the Act. The next contention of the learned Advocate for the appellant was that having regard to the terms of clause 12E of the Colliery Control Order, 1945, to which I adverted earlier in this judgment, the transaction could not be regarded as a sale. In support of this contention reliance was placed on the decision of the Supreme Court in New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar. In that case it was held that the term "sale" in section 2(g) of the Bihar Sales Tax Act must be interpreted to mean a sale as defined in the Sale of Goods Act, 1930. Under section 4 of the latter Act, in order to constitute a sale of goods, property in the goods must be transferred from the seller to the buyer under a contract of sale. But in that case the assessee despatched sugar to the authorised agent of the State of Madras in compliance with the direction given by the Sugar Controller exercising his power under the Sugar and Sugar Products Contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Additional Commissioner of Commercial Taxes on 28th July, 1957. But it was argued that the appeal and the revision application did not exhaust the remedies provided by the Act. The appellant could have, it was argued, preferred a further revision application to the Board of Revenue under section 20(3) of the Act. This was not done, and therefore, it was argued, that the appellant did not exhaust the remedies provided by the statute, and that being so he was not entitled to relief in a writ petition. In support of this contention reliance was placed on the decision of the Supreme Court in Sales Tax Officer, jodhpur v. Shiv Ratan G. Mohatta[1965] 16 S.T.C. 599. In that case after the assessment order was made by the Sales Tax Officer, the assessee immediately moved the High Court under Article 226 of the Constitution without recourse to the remedies provided in the statute, and it was held that it was not the object of Article 226 to convert High Courts into original or appellate assessing authorities whenever an assessee chose to attack an assessment order on the ground that a sale was made in the course of import and therefore exempt from tax. But although these observations we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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