TMI Blog2012 (2) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... ansaction gets completed and therefore, the assessee holds the goods on behalf of the buyer. View taken by the Additional Commissioner on this aspect in restoring the assessment order by setting aside the order is perfectly justified as, the moment the assessee had received the payment and payment is appropriated with reference to the identified goods the sale has taken place The words or phrase "aluminium extrusion" is one of many forms. Aluminium metal amongst many items described under this entry and what one can notice here is that several items in this entry are one fitting into a basic presentation of aluminium metal as a commodity either in moulds or in billets or in aluminium extrusion, etc. In fact, the assessee also has described that and sells it as permanent wire tightener and not as aluminium extrusion or any form of aluminium. May be the mould used is aluminium, but that in no way detracts from the end-product which is distinctly identified as a product and not merely as a form of aluminium in which the aluminium metal can be sold. It is for this reason we reject the argument that it should have been brought within the scope' of entry 67 of the Third Schedule to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority which had been set aside by the appellate authority and even in respect of the levy of tax on permanent wire tightener as one covered under the residuary entry in terms of section 4(1)(b) of the Act as against the appellate authority's view that permanent wire tighteners should have been subjected to tax at the rate as is applicable in respect of entry 67 of the Third Schedule to the Act and with reference to section 4(1) (a) of the Act, the claim of the assessee was found to be not tenable by the Commissioner and order passed by the appellate authority was set aside and here again the original assessment was restored. The assessee is in appeal on these two aspects. 5. Though two other issues have been raised in this appeal, we are informed by Sri Shankare Gowda, learned counsel for the appellant/dealer, that insofar as the claim in respect of input-tax rebate, for purchase of certain items and the rate of tax in respect of the injection moulds are concerned, the Commissioner himself having set aside the order of the Appellate Commissioner, insofar as these two aspects are concerned, but having remanded the matter relating to these aspects to the assessing authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Government Advocate tried to suggest that there was, in fact, a turnover which was created by the sale and, therefore, the finding of the appellate authority was incorrect. In our opinion, the argument is basically incorrect because the transaction cannot be said to be a 'sale' much less within the parameters of section 3 of the Central Sales Tax Act, 1956, as there is no movement of the goods at all. The goods have remained with the assessee alone because they are the dies and tools and it is from those dies and tools that the finished products are manufactured. Since such dies never moved out of the factory premises of the assessee, there will be no question of tax liability. and therefore, submits that on fact, the present case being not much difficult, there is no tax liability in respect of a payment received by the dealer by way of tool development charges, etc. 9. While on this aspect submission is that even assuming the payment received towards tool development charges should be taken as sale price of the mould without conceding the stand of the assessee, then also the rate of tax at which the transaction should have been subjected to can only be at f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d into the order passed by the Additional Commissioner and the records, considered the submissions made at the Bar and the authority. 14. Insofar as the first aspect is concerned, while an export sale which comes within the scope of section 5(1) of the Central Sales Tax Act, 1956 is qualified for exemption under the Act and even as provided in the manner of computation of taxable turnover under section 2(34) of the Act, if so qualifies if there is an export actually or as deemed under section 5 of the Act, in the instant case/there is no dispute that the goods never moved out of the assessee's premises and therefore, never crossed the customs frontiers of India. The assessee nevertheless described the sale transaction in favour of the foreign buyer as an export sale and therefore, claimed exemption. If the export part does not take place only the sale part remains and if there is a sale which even the assessee admitted or claimed to be as an export sale, it remains a sale and therefore cannot escape the liability for taxation unless it is an inter-State sale or export sale. 16. There being a sale but neither export nor inter-State and the assessee having claimed there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the assessee cannot be taxed as there is no sale at all is concerned, we find that it was not an issue before the assessing authority or the first appellate authority. However, though Mr. Shankare Gowda, has drawn our attention to the discretion of the Commissioner on this aspect of the matter, as contained in para 9 of the order, we find that the Commissioner, has held the clarification relied upon by the dealer was not applicable to the present case for the reason that the clarification was only in respect of the goods purchased and used as capital goods, which are the goods which are covered as actual goods as per the Notification No. FD 316 CSL 2005 (I) dated August 5, 2005. 20. On facts the Commissioner found that in the present case the particular goods were not used as capital goods because the dealer was not using something that he purchased as actual goods, but something that was sold to a buyer though outside India but retained on their behalf and used for the purpose of the buyer. 21. It is not a situation of a dealer using the actual goods he had purchased for producing a product which is assessable under the Act. This is a case of the goods of another person ..... X X X X Extracts X X X X X X X X Extracts X X X X
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