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TMI Blog2014 (9) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis that the goods sold by the applicant to the purchaser/ exporter have not been exported by it in the same form, which is contrary to the decision of the Hon'ble Apex Court in the case of State of Karnataka Vs. Azad Coach Builders Pvt. Ltd. ? " 3. Both the learned counsel for the parties submits that since the impugned order has been passed by the Tribunal without considering to the Constitution Bench judgment of Hon'ble Supreme Court in the case of State of Karnataka Vs. Azad Coach Builders Pvt. Ltd., 2010 UPTC-1279 ( paras 24, 25 and 26) and as such this revision may be finally heard. In the circumstances, with the consent of the parties, this revision being finally heard. 4. Briefly stated the facts of the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid order of the Tribunal, the applicant has filed this revision. 7. Sri Shubham Agrawal submits that the Tribunal and the authorities below have committed manifest error of law to reject the claim of the applicant for exemption under Section 5(3) of the Act in respect of transaction in question on the ground that the same goods have not been exported. He submits that the Constitution Bench of Hon'ble Supreme Court in the case of Azad Coach Builders Pvt. Ltd. (supra), held that the test to be applied is, whether there is an in- severable link between the local sale or purchase and export and if it is clear that the local sale or purchase between the parties is inextricably linked with the export of the goods, then a claim under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mprises in itself three essentials: (i) that there must be a sale: (ii) that goods must actually be exported and (iii) that the sale must be a part and parcel of the export. The word `occasion' is used as a verb and means 'to cause' or 'to be the immediate cause of'. Therefore, the words `occasioning the export' mean the factors, which were immediate course of export. The words `to comply with the agreement or order' mean all transactions which are inextricably linked with the agreement or order occasioning that export. The expression `in relation to' are words of comprehensiveness, which might both have a direct significance as well as an indirect significance, depending on the context in which it is used an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transaction between the exporter and foreign buyer are inextricably connected with each other, in our view, the `same goods' theory has no application." 11. The Tribunal as well as the authorities below have rejected the claim of the applicant without considering the law laid down by Hon'ble Supreme Court in the aforementioned judgment. 12. Section 5(3) of the Act clearly indicates that the phrase 'in the course of export' comprises in itself three essentials, namely; (i) that there must be a sale, (ii) that goods must actually be exported and (iii) that the sale must be a part and parcel of the export. The words 'occasioning the export' mean the factors, which were immediate course of export. The words `to compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be applied is, whether there is an in- severable link between the local sale or purchase on export and if it is clear that the local sale or purchase between the parties is inextricably linked with the export of the goods, then a claim under Section 5(3) for exemption from State Sales Tax is justified, in which case, the same goods theory has no application. 13. In my view the judgment of Hon'ble Sureme Court in the case of Azad Coach Builders Pvt. Ltd (supra) needs to be considered by the Tribunal on the facts of the present case. 14. In result, revision succeeds and is hereby allowed. Impugned order of the Tribunal passed in Second Appeal No. 04/2014 (A.Y. 2007-08) is restored to its original number. The matter is remanded with a di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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