TMI Blog2011 (2) TMI 1313X X X X Extracts X X X X X X X X Extracts X X X X ..... nataka. We further notice from copy of form H in Sl. No. F 176853, at page 93 to the writ petition that M/s. MSPL Ltd., Bangalore has purchased the goods from the petitioner vide cash memo No. 1 dated August 21, 2009. Thus, the claim of the petitioner that its sale to M/s. MSPL Ltd., is in course of export and fall within the ambit of section 5(3) of the CST Act is not tenable. In view of the above, we do not find any infirmity or illegality in the order passed by opposite party Nos. 2 and 3 under annexures 1 and 6 respectively warranting any interference by this court. Appeal dismissed. - W.P. (C) No. 19828 of 2010 - - - Dated:- 24-2-2011 - GOPALA GOWDA V. AND MAHAPATRA B.N., J. The judgment of the court was delivered by B.N. MAHAPATRA J. In this writ petition the petitioner challenges the egality and propriety of the order dated August 5, 2010 (annexure 1) passed by opposite party No. 2-Additional Commissioner, Sales Tax, North Zone, Cuttack (for short, Revisional Authority ) by which the order of opposite party No. 3 -Sales Tax Officer, Rourkela II Circle (for short, the STO ) dated May 28, 2010 denying issuance of form C has been upheld. Bereft of unnecessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as required for the purpose of export. The purchase order specifies the rate. It is indicated in the said order that seller is to raise final invoice along with certificate issued by SGS India Pvt. Ltd., relating to quality. The petitioner in order to fulfil the obligation stated above contacted and visited the mines of Saha Brothers, Jharkhand and placed purchase order with Saha Brothers, Jharkhand for supply of the same goods. At the instruction of the petitioner, M/s. Saha Brothers booked the goods through railway in favour of M.S.P.L. Ltd. In pursuance of sale of goods there was transportation of those goods from the State of Jharkhand to another State. Subsequent to supply of materials, M/s. Saha Brothers raised bills in favour of the petitioner charging concessional rate of Central sales tax in terms of the provisions of the CST Act on the condition that the petitioner shall submit declaration form C to it. The petitioner had made the purchase of the goods from outside the State and supplied the goods on inter-State basis. Even though the goods purchased by the petitioner have not moved to Orissa, the transactions made by it was effected by way of transfer of document of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner for and in connection with purchases made by it for export purposes. The sales effected by the petitioner are export sales and such sales fall under the scope of section 5(3) of the CST Act. The petitioner disclosed the transaction under the return reflecting as sales falling under section 5(3) of the CST Act. The tax liability under section 6 accrued against the petitioner but dispensed since it fell within the scope of section 5(3) of the CST Act. The petitioner has to meet the statutory requirement like submission of statutory declaration forms and other evidentiary documents for availing of tax exemption provided under section 5(3) of the CST Act. The petitioner has submitted the return for the tax period from March 1, 2010 to March 31, 2010 disclosing the sales made by it for export and claimed exemption on account of the tax. Due to nonreceipt of certificate H from M/s. MSPL Ltd., the petitioner revised its return during the month of October, 2010 and had paid Rs. 10 lakhs as tax. Concluding his argument, Mr. Pati submitted that opposite parties should be directed to supply form C to the petitioner forthwith. Per contra, Mr. R.P. Kar, learned standing cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question relates to the petitioner's entitlement to be supplied with form C being a dealer registered under section 7(2) of the CST Act. Sub-section (2) of section 7 enables those dealers who though not liable to pay tax under the CST Act but are liable to pay tax under the sales tax laws of the appropriate State or where there is no such law in force in the appropriate State or any part thereof who have place of business in that State or any part thereof, to apply for registration under this sub-section. Thus, a dealer who is not himself a seller in inter-State trade but he is only a purchaser of goods from outside the State if he gets himself registered under section 7(2) can obtain goods with concessional rate of tax under section 8(1)(b) if those goods are specified in its certificate of registration. Section 8(4) of the CST Act provides that the declaration form is to be submitted in the prescribed form obtained from the prescribed authority when a dealer claims concessional rate of tax on his sale under section 8(1) of the said Act. Rule 12(1) of the CST (Registration and Turnover) Rules, 1957 provides that the declaration shall be in form C. Under rule 12(6) of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commercial Taxes (Civil Appeal No. 2421 of 2006, disposed of on August 7, 2007). Be that as it may, if at the time of issuance of C declaration form, the issuing officer has knowledge about use of C forms by the dealer and on enquiry into the nature of transaction he comes to a finding on the basis of materials available before him that the claim of inter-State purchase by the dealer is not correct, it cannot be said that the STO lacks jurisdiction in refusing to issue C declaration forms. Therefore, if at the time of issuance of form C it comes to the knowledge of the issuing officer that the declaration form if issued shall be misutilised, then he is not expected to issue declaration form C and allow those to be misutilised and till that time he will remain as mute spectator awaiting initiation of criminal/penal action under section 10 or section 10A of the CST Act. In the instant case, the petitioner claims that it has purchased goods from one M/s. Saha Brothers, on the condition of C declaration forms and while goods were in transit, it sold the goods by transfer of documents as provided under section 3(b) of the CST Act to one M/s. MSPL Ltd., Karnataka. The further cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one State to another. In other words, section 3(b) applies to a sale effected after such despatch but before actual delivery of goods. Documents attached to the writ petition under annexure 4 series reveal that in some railway receipts the consignor was shown as M/s. Saha Brothers and the consignee was shown as M/s. MSPL Ltd. In some other railway receipts both the consignor and consignee are shown as M/s. MSPL Ltd. In those railway receipts (document of title to goods) the name of the petitioner does not appear. Moreover, in cases where consignor and consignee is described as same person, the question of transfer of title does not arise. Therefore, the petitioner is not entitled to be issued with form C to claim the concessional rate of tax in respect of movement of goods from one State to another where the petitioner is not a party. There is much argument and counter-argument with regard to the petitioner's claim of export sale. The claim of the petitioner that sale to M/s. MSPL Ltd., Karnataka is in course of export and therefore, the said transaction falls under the ambit of section 5(3) of the CST Act and qualifies from exemption from tax is also not correct. Section 5( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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