TMI Blog2018 (12) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... uty and specifically earmarked for export would not by that alone qualify for the consignment to be treated as a consignment made in the course of export - It is also to be stated that merely for the reason that the manufactured goods are first consigned to the godown at Tamil Nadu and then exported, it would not result in dis-entitling the assessee to a claim that the stock transfer is in the course of export. This would have to be proved by sufficient documents, which the assessee could produce before the Assessing Authority. The stock transfer destined to Tamil Nadu cannot be said to be in the course of export, since the destination of the foreign buyer is not clear at the time stock transfer originates. The consideration as to whether a specific stock transfer on consignment, is in the course of export has to be considered by the Assessing Authority - Appeal allowed by way of remand. - OT. Appeal. No. 3 of 2010 - - - Dated:- 3-9-2018 - MR K. VINOD CHANDRAN AND MR ASHOK MENON, JJ. For The APPELLANT : ADV. SRI. E. K. NANDAKUMAR (SR. ) For The RESPONDENT : SR G. P. V. K. SHAMSUDDIN JUDGMENT Vinod Chandran, J . The issue in the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avathoor unit of the appellant is destined for export, especially since it is manufactured under the Unique Product Code and the returns filed before the Excise Authorities require the assessee to export the goods and otherwise scrap the same for reason of the assessee not having been assessed to any excise duty for the manufactured goods intended only for export. Hence, there could be no diversion of the manufactured goods as has been found by the Clarificatory Authority. The learned Counsel would also rely on the decisions of the Hon'ble Supreme Court reported in Burmah Shell Oil Storage and Distributing Co.of India Ltd. v. Commercial Tax Officer, AIR 1961 SC 315; Ben Gorm Nilgiri Plantations Co-Conoor (Nilgiris) v. Sales Tax Officer, AIR 1964 SC 1752 and State of Haryana v. Nipha Exports Pvt.Ltd., [2007] 8 VST 466 (SC). 5. The learned Senior Government Pleader, however, submits that merely because the assessee intended to export the goods manufactured, there can be no refund of input tax granted under Section 13, since the assessee would also have to prove that the stock transfer is in the course of export, for which a prior export order is imperative; without which there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll (supra) has to be noticed only to understand the dictum laid down as discernible from the extract from State of Travancore- Cochin v. Bombay Co.Ltd. (1952) SCR 1112, which is as follows:- A sale by export thus involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea. Such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export form parts of a single transaction. Of these two integrated activities, which together constitute an export sale, whichever first occurs can well be regarded as taking place in the course of the other. Again, what is to be emphasised is that the integrated activities commence from the agreement of sale with a foreign buyer and end with the delivery of the goods to a common carrier for transport out of the Country by land or sea. The transaction to be commence with in the course of export has to be the agreement of sale entered into with the foreign buyer or the purchase order, based on which the transaction commences. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he course of export. An illustration vividly expressing the difference was made. If goods are taken out of the country as ordered by the Health authorities for dumping into the sea, beyond the territorial waters, though there is transfer outside the country, there is no export since there is no destination specified. However, when goods are shipped on board a steamer with a specific destination in a foreign country, but are jettisoned in the course of the voyage, then despite the goods not reaching the destination, would be treated as 'export'. It was held: The difference lies in the fact that whereas the goods, in the first example, had no foreign destination, the goods, in the second example, had. It means, therefore, that while all exports involve a taking out of the country, all goods taken out of the country cannot be said to be exported. The test is that the goods must have a foreign destination where they can be said to be imported. It matters not that there is no valuable consideration from the receiver at the destination end. If the goods are exported and there is sale or purchase in the course of that export and the sale or purchase occasions the export to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the godown at Tamil Nadu and then exported, it would not result in dis-entitling the assessee to a claim that the stock transfer is in the course of export. This would have to be proved by sufficient documents, which the assessee could produce before the Assessing Authority. 14. The stock transfer destined to Tamil Nadu cannot be said to be in the course of export, since the destination of the foreign buyer is not clear at the time stock transfer originates. The stock transfer is not on any specific export order and as has been admitted by the assessee, the goods manufactured for export, are pooled at the export godown at Tamilnadu and the exports made in accordance with the orders made by the foreign buyer. These orders could be either before or after the stock transfer and if the goods are despatched on export in pursuance to a purchase order received after the stock transfer, the movement of goods from Kerala to Tamil Nadu cannot be termed in course of the export. 15. While not interfering with the order of the Clarificatory Authority, we make it clear that the consideration as to whether a specific stock transfer on consignment, is in the course of export has to be con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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