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TMI Blog2011 (1) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... llant could not allegedly show any evidence that it was the penultimate sale. 3. The aforesaid two issues have arisen for consideration in the light of the submissions made on the basic facts of these appeals which are hereinafter being set out :- 4. The appellants are exporters of tea. The appellants purchased tea from the tea planters directly in open auction and thereafter exported the same to foreign countries. The appellant being the exporter of the aforesaid consignment claimed for exemption on the ground that purchase was exempted under Section 5(3) of the CST Act. The said claim for exemption was found to be genuine by the Assessing Authority, and was allowed in full. The appellant also made a claim for refund of tax collected from them by the seller at the time of purchase of tea. The said claim was rejected by the Assessing authority and it was held that they cannot claim for refund under Section 44 of the KGST Act since they have not paid the tax to the Department but it was the sellers who have paid the tax and therefore under the provisions of Section 44 of the KGST Act, the refund that could be made is to the dealer only and the assessee being not a dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovery of any amount due, on the date of adjustment, from the dealer. (4) 1n case refund under sub-section (1) or sub-section (2) or adjustment under sub-section (3) is not made within ninety days of the date of final assessment or, as the case may be, within ninety days of the date of receipt of the order in appeal or revision or the date of expiry of the time for preferring appeal or revision, the dealer shall be entitled to claim interest at the rate of six percent per annum on the amount due to him from the date of expiry of the said period up to the date of payment or adjustment." 8. After referring to the said provision, it was held by the Tribunal that in case the dealer has paid the tax in excess of what was due from him it could be refunded to the dealer, but here is a case where not the dealer but the appellant had claimed exemption under Section 5(1) read with Section 5(3) of the CST Act. The assessing authority accepted the claim and allowed exemption. But so far as the question of refund of tax is concerned, the Tribunal held that there is no question of refund of tax in the case of the appellant since no tax had been demanded from the appellant for all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of the aforesaid contentions, he referred to provision of Section 5(3) of the CST Act which is extracted hereinbefore :- Section 5 - When is a sale or purchase of goods said to take place in the course of import or export (1)***************** (2)****************** (3) Notwithstanding anything contained in 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. 14. We have considered the aforesaid submissions of the learned counsel appearing for the parties in the light of the records placed before us. Since, the contentions of the learned counsel appearing for the respondent State are with regard to the fact that the appellant cannot claim exemption in absence of proof of an agreement in support of the claim for exemption under Section 5(3) and the same goes to the very root of the claim made, we deem it proper to take the aforesaid stand at the first stage. 15.& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve a direct significance as well as an indirect significance, depending on the context in which it is used and they are not words of restrictive content and ought not be so construed. 17. It was held by the Constitution Bench that there has to be an inextricable link between local sales or purchase and if it is clear that the local sales or purchase between the parties is inextricably linked with the export of goods, then only a claim under Section 5(3) for exemption under the Sales Tax Act would be justified. The principle which was laid down in the said decision is required to be applied to the facts of the present case in view of the submissions made by the counsel appearing for the respondent State and refuted by the counsel appearing for the appellant. 18. It is true that in the present case, there is no agreement available on record to indicate that the aforesaid purchase was made for the purpose of export. In the absence of the said document, it is not possible for us to specifically state as to whether it was clear that the sale or purchase between the parties i.e. the dealer and the purchaser was inextricably linked with the export of goods. It is only when a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. We now proceed to address the first issue which is in fact the main issue arising for consideration in these appeals i.e. as to whether the appellants are entitled for refund of tax collected from them at the time of purchase of tea in view of the provisions relating to refund as contained in Section 44 of the KGST Act. 22. The Assessing Authority, the Appellate Authority as also the Appellate Tribunal have clearly recorded a finding that when a dealer has paid the tax in excess of what is due from him, it has to be refunded. The said excess tax is only to be refunded to the dealer inasmuch as dealer is entitled to receive a refund, if tax is paid in excess of what was due from him. In view of the said position, all the aforesaid authorities have held that a question of refund of tax would not arise in the case of the appellant, since no tax had been demanded from the appellant for the tea of all the four years. 23. Considering the facts and circumstances of the present case, we find that tax was collected from the appellant at the time of purchase of tea in the occasion sale conducted by the tea planters since tea is a commodity which was liable to tax at th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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