TMI Blog2011 (1) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... ased tea from the tea planters directly in open auction and thereafter exported the same - There is no agreement available on record to indicate that the aforesaid purchase was made for the purpose of export - At the time of auction sale when the appellant purchased the tea from the dealer, there is nothing on record to show that a definite stand was taken by the purchaser that the aforesaid purchase of tea is for the purpose of occasioning an export for which an agreement has been entered into -Since, no such claim was made at that stage, so therefore sales tax was realised which was paid to the government by the dealer - It is a clear finding recorded by the assessing authority himself that the export documents were verified by him with the accounts from which it is indicated that the entire exports were effected pursuant to the prior contract or prior orders of the foreign buyers and that the export sales are supported by bills of lading, export invoices and such other valid documents - Hence, the assessing Authority clearly held that the claim for exemption was genuine and the same has to be allowed in full. - Civil Appeal Nos. 474-481 of 2011 - - - Dated:- 13-1-2011 - Dr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessing authority that the export sales is pursuant to the prior contract or prior order of the foreign buyers and also that export sales are supported by bill of lading, export invoices etc. The appellate authority also recorded the finding that the claim of exemption under Section 5(3) of the CST Act is envisaged for the penultimate sales or purchase preceding the sale or purchase occasioning the export. However with regard to the refund it was noted that the goods purchased are taxable at the sale point and hence the liability to pay tax is on the part of the seller. Accordingly, it was for the Seller to prove that the sales are effected to an exporter in pursuance of prior contract or prior orders of the foreign buyers. 6. It was held by the Appellate Authority that since, in the present case the aforesaid sellers namely the planters who sold tea to the appellant and on whom the burden lies to prove before the assessing authority that his sale is for fulfilling an agreement or order of the foreign buyer had not satisfied those conditions and had also not discharged his burden, therefore, there is no question of refund in the present case to the appellant as they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was also dismissed under the impugned judgment and order as against which the present appeals were filed. We have heard the learned counsel appearing for the parties who had taken us through all the orders which gave rise to the aforesaid two issues which fall for our consideration in the present appeals. 10. Learned counsel appearing for the appellant submitted before us that appellant has admittedly paid the tax to the dealer at the time of occasion of sale made to it by the dealer namely the tea planters. It was also submitted by him that department has received the aforesaid tax paid in excess by the appellant and that there is a prohibition on the State to retain the excess tax in lieu of the provisions of Article 265 and 286 of the Constitution of India. 11. It was also submitted by him that in addition to the provisions of Section 44 of the KGST Act, a proactive view has to be taken by this Court in the facts and circumstances of the present case by referring to the decision of this Court in the case of Mafatlal Industries Ltd. Ors. v. Union of India Ors. reported in (1997) 5 SCC 536 = 1997 (89) E.L.T. 247 (S.C.). 12. The learned counsel appearing for the State, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was for the purpose of complying with, the agreement or order for or in relation to such export. 16. In the case of State of Karnataka v. Azad Coach Builders Pvt. Ltd. Anr., reported in 2010 (9) SCALE 364 = 2010 (262) E.L.T. 32 (S.C.), the Constitution Bench of this Court took note of the aforesaid sub-section (3) and after noticing the said provision laid down the principles which emerged therefrom as follows :- 23. When we analyze all these decisions in the light of the Statement of Objects and Reasons of the Amending Act 103 of 1976 and on the interpretation placed on Section 5(3) of the CST Act, the following principles emerge : To constitute a sale in the course of export there must be an intention on the part of both the buyer and the seller to export; There must be obligation to export, and there must be an actual export. The obligation may arise by reason of statute, contract between the parties, or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export. To occasion export there must exist such a bond between the contract of sale and the actual exportation, that each link is inextr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entered into. Since, no such claim was made at that stage, so therefore sales tax was realised which was paid to the government by the dealer. Despite the said fact, there is a clear finding recorded by the assessing authority himself that the export documents were verified by him with the accounts from which it is indicated that the entire exports were effected pursuant to the prior contract or prior orders of the foreign buyers and that the export sales are supported by bills of lading, export invoices and such other valid documents. 19. In the light of the said findings, the assessing Authority clearly held that the claim for exemption was genuine and the same has to be allowed in full. But so far as refund is concerned, the assessing Authority held that the claim for refund cannot be allowed since the dealer has paid the tax and therefore, refund cannot be granted to the assessee/appellant who is not the dealer. Referring to the provisions of Section 44 of the KGST Act, the Deputy Commissioner (Appeals) i.e. appellate authority also held that it is the seller (the dealer) on whom the burden lies to prove before the assessing authority that the sale is for fulfilling an agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is only the dealer of tea on whom the assessment has been made and it is only he who can claim for refund of tax. In view of the clear and unambiguous position, the appellant cannot claim for refund of tax collected from the seller of tea. It is clearly provided in the principles of Interpretation of Statutes that when the meaning and the language of a statute is clear and unambiguous, nothing could be added to the language and the words of the statute. This Court in the case of Sales Tax Commissioner v. Modi Sugar Mills reported in AIR 1961 SC 1047 observed as follows :- 10. In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions . The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed : it cannot imply anything which is not expressed it cannot import provisions in the statutes so as to supply any assumed deficiency. 25. Therefore, we cannot overlook the mandate of the provisions of the KGST Act which clearly rules that it is only the dealer of tea on whom an assessment ha ..... 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