TMI Blog1999 (6) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... on the turnover of Rs. 2,72,09,812 which according to the petitioner represents the purchases made in the course of export within the meaning of section 5(3) of the Central Sales Tax Act, 1956. The petitioner furnished certain documents in support of his claim for exemption, viz., orders of foreign buyers placed on non-resident principals, purchase orders of principals, form H declarations and statements of account (patties) furnished to the principals. Certain letters of appointment as commission agent were also furnished later. The assessing authority was not satisfied with the correctness of the petitioner's claim. He pointed out certain deficiencies in the documents furnished by the petitioner and concluded that the claim of the petitioner as a buying agent on behalf of non-resident principals (exporters) was not conclusively proved. The assessing officer observed that the petitioner was chargeable to tax not only under the main charging section, but also under section 6-A of the Act. He also found that H declaration forms were wanting in relevant particulars. The assessing officer also commented that there was no provision for filing revised return under the Act and the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 6-A. According to the learned counsel, the transactions facilitating the export of goods out of the territory of India are thus brought within the tax net under section 6-A and this, according to the learned counsel, offends article 286. 4.. We fail to see how clause (c) of section 6-A becomes unconstitutional for the reason that out-of-State despatches in the course of export are not excepted under clause (c). Firstly, the omission to make an exception in regard to despatches to a place outside the State in the course of export does not make the exception in respect of inter-State sales invalid. Secondly, the purpose of providing exception as far as interState sale is concerned, is obviously for the reason that the dealer will be liable to pay Central sales tax and in that sense, the State realises the revenue. The object of section 6-A which provides for contingent purchase tax liability, is to ensure to the extent possible that the goods which are generally liable to tax do not elude the tax net altogether on account of certain supervening circumstances. When it is possible to realise Central sales tax the Raison d'etre for levying the tax under section 6-A will disappear. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f inter-State trade or commerce or outside a State or in the course of import or export". Thus, what is obvious and what necessarily flows from article 286 is reiterated in section 38 which opens up with the phraseology akin to a non obstante clause. Section 6-A or for that matter any other charging section in the Act has to necessarily yield to the mandate of section 38 which in turn owes its origin to clauses (a) and (b) of article 286(1). Viewed from any angle, we cannot visualise any Constitutional infirmity in clause (c) of section 6-A 6. The learned counsel for the petitioner then submits that in the face of recent decision of the Supreme Court in Ashraf's case [1997] 107 STC 571, the departmental authorities including the appellate authority will be practically left with no option but to disallow the petitioner's claim. It is pointed out that the law laid down by the Supreme Court in B.M. Ashraf's case [1997] 107 STC 571 while interpreting section 6 of the Karnataka Sales Tax Act, 1957 conflicts with the exposition of law in State of Tamil Nadu v. M.K. Kandaswami [1975] 36 STC 191 (SC) in which the constitutional validity of a corresponding provision in Madras Act, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort. In Ashraf's case [1997] 107 STC 571 (SC), it was nobody's case that the purchase which was taxed under section 6 of the Karnataka Sales Tax Act, 1957 corresponding to section 6-A of the A.P. General Sales Tax Act, 1957 was the purchase in the course of export. The sale by the assessee after the local purchase effected by him and the subsequent sale by the purchaser to the foreign buyer, were the sales in the course of export. The Supreme Court therefore observed that no tax was leviable on such sales under section 5 of the Act inasmuch as the sales were in the course of export. Nevertheless, the Supreme Court laid down that the local purchase (preceding the export sale), was liable to tax under section 6 of the Karnataka Sales Tax Act, 1957. The law laid down by the Supreme Court in Ashraf's case [1997] 107 STC 571 does not in any way expose section 6-A of the A.P. General Sales Tax Act, 1957 to the risk of violation of article 286. To characterise the legal position declared by the Supreme Court in Ashraf's case [1997] 107 STC 571 as "per incuriam" is the result of misunderstanding of the true ratio of the decision and the provisions of law construed therein. 10.. What emer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore subjected the petitioner's turnover under section 5 itself, having reached the conclusion that the purchases were not in the course of export. In fact, the assessing authority referred to section 5 also in the earlier part of his order. But, the ultimate application of section 6-A has given rise to unnecessary controversy. The mere fact that a wrong charging provision has been applied, does not however make material difference so long as the power to tax is traceable to one or the other charging sections and the quantum of tax is the same. Therefore, in the instant case, the assessment will not fall to ground merely because the turnover was brought to tax under section 6-A rather than under section 5. But, we would like to reiterate that neither section 5 nor section 6-A can be applied to bring the purchases made by the petitioner within the net of taxation if the purchases were in the course of export. Thus, ultimately, the crucial question which the appellate authority has to address itself is whether the purchases made by the petitioner from market yards were themselves in the course of export within the meaning of section 5(3) of the Central Sales Tax Act, 1956 as clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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