9911796707
TMI Blog1991 (2) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... ions against the said order of the Tribunal. 2.. It is not in dispute that Polythene bags were sold by the respondents/assessees to the export merchants for packing of banians. It is also not in dispute that the Polythene bags were utilised for packing of the banians, which were exported to foreign countries. The case of the petitioner herein is that the records produced in support of their claim by the assessees/respondents reveal that goods were exported by the exporters, but there was no mention in the bill of lading about the use of Polythene bags for packing the materials. It is thus a case in which exemption could be granted in respect of sales of the commodity exported and not in respect of any other commodity sold to the merchants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (1), the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India shall also be deemed to be in the course of such export, if such last sale or purchase took place after, and was for the purpose of complying with, the agreement or order for or in relation to such export." 4.. The Tribunal has found that the Polythene bags sold to the export merchants were part and parcel of the commodity exported. It is not in dispute however that banians which were exported were/are exempted from tax. The question herein is whether the packing material, which was utilised by the merchants for packing the banians also was a sale or purchase of goods as envisaged in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely at the average rate of income-tax and the average rate of super-tax on a sum equal to two per cent of the sale proceeds receivable by him in respect of such articles from the exporter." Reading the said provision, a Bench of this Court in the case of Commissioner of Income-tax v. Poly-ene General Industries [1976] 104 ITR 242, has said: "In the present case, the contention of the Revenue is that clause (iii) of section 2(5)(a), with which alone we are concerned, requires two conditions to be satisfied, namely, that the assessee engaged in the manufacture of specified articles should have sold the said articles to any other person in India and that such person should have himself exported them out of India. It is pointed out that the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale or purchase in the course of the export of the goods within the territory of India then the sale by the assessees preceding the sale by the export merchants will be fully covered by sub-section (3) of section 5. It is not a case in which there was any further sale than the sale by the assessees to the export merchants and the sale by the export merchants. True, Polythene bags were separately sold, but banians were sold in the Polythene bags and the transfer of title in the bags along with the transfer of title in the banians is not in dispute. The Tribunal has also said: "It is common knowledge that the banians cannot be exported without being packed and the packing materials are part and parcel of the commodity exported and the valu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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