TMI Blog2021 (4) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the Assessee had transferred the goods before it crossed the Customs Station, Tribunal was correct in granting relief. The Tribunal committed a serious error in reversing the well considered order passed by the First Appellate Authority by touching upon the factual findings, which were recorded by the First Appellate Authority - there are no hesitation to hold that the common impugned order passed by the Tribunal calls for interference. Petition allowed. - Writ Petition Nos.28261, 28262, 33999 & 34372 to 34376 of 2004 & all connected pending WPMPs - - - Dated:- 26-3-2021 - Honourable Mr.Justice T.S.Sivagnanam And Honourable Mrs.Justice V.Bhavani Subbaroyan For the Petitioners : Mr.S.Raveekumar For the Respondents 2 3 : Mr.Mohammed Shaffiq, SGP Mr.R.Swarnavel, GA COMMON ORDER T.S.SIVAGNANAM, J. We have heard Mr.S.Raveekumar, learned counsel for the petitioners and Mr.Mohammed Shaffiq, learned Special Government Pleader and Mr.R.Swarnavel, learned Government Advocate (Taxes) appearing for respondents 2 3. 2. These writ petitions have been filed by the petitioners, who are registered dealers on the file of the third respondent herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants were also verified by the Departmental Representative and found in order, Further under Sec.4(2) of the CST Act, 1956, the documents of title in the course of import can only be the Bill of lading as held by the Hon ble Sales Tax Appellate Tribunal (Main Bench) in T.A.Nos.369/97 and 370/97 dated 2.9.98 and not the Bill of Entry, as relied on by the learned Assessing Authority. Moreover, in T.A.No.601/94 (Main Bench) dated 2.1.97 in the case of M/s.Narasimha Plastics, the Sales Tax Appellate Tribunal (Main Bench) has held that the provisions of Section 5(2) of the CST Act is not conjoint but disjoint having regard to the usage of the word or in between the first limb of the provisions and second limb of the provisions. Therefore, in order to make oneself eligible for exemption in respect of sale in the course of import, it is enough, if the importer satisfied either the first limb or the second limb and not the both. 9. In the instant case on band, while the goods were in high seas and before crossing the customs station, the appellants entered into contract with the high sea buyers and transferred the documents of title in favour of the high seas buyers as seen fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of State of Tamil Nadu Vs. Kawarlal Co. [reported in 2011 SCC Online Mad. 1492] in support of his contention. 9. Per contra, the learned Special Government Pleader, while seeking to sustain the impugned order passed by the Tribunal, has drawn our attention to various paragraphs of the impugned order and more particularly paragraph 16 of the impugned order. It is submitted that the Tribunal recorded that the original Bill of Entry for home consumption contained only the name of the actual importer ie. Tvl. Raj Chem Plast and that there was a difference between the Bill of Entry produced before the Department and the original bill available with the Customs Authority. 10. This finding stems out of the observation/finding rendered by the Assessing Officer. The order passed by the Assessing Officer was tested for its correctness by the First Appellate Authority, before whom, the dealer produced voluminous documents and in particular, Bills of Lading, which were documents of title and after verifying the documents and allowing the Department to verify, the First Appellate Authority found that the sales were genuine high sea sales. Therefore, unless the Tribunal recorded fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices raised in favour of the ultimate buyer, we have no hesitation in holding that with the title to the goods thus endorsed even before it crossed the Customs Station, the claim of the assessee could not be denied just based on the Bill of Entry which is admittedly not a document of title. As regards the second Bill of Lading dated 22.12.1992 and the invoices of the ultimate purchaser dated 19.2.1993, even herein too, even before the date of crossing the Customs Station on 15.03.1993, the Bill of Lading was endorsed in favour of the purchaser. We do not find that the Revenue could successfully canvass its case based on the entries on the name found in the Bill of Entry. 11. It may be of relevance to note that the Bill of Entry is never treated as a document of title under the Customs Act. Under Section 46 of the Customs Act - Entry of goods on importation - the importer has to file Bill of Entry before the proper officer, which may be for home consumption or for ware housing. Only on filing the Bill of Entry for home consumption that the goods are allowed to be cleared after the payment of required customs duty. Importer is defined under Section 2(26), which reads ..... X X X X Extracts X X X X X X X X Extracts X X X X
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