TaxTMI 
TaxTMI 
1994 (12) TMI 117
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....ter sales made against foreign exchange as export sales for the purposes of computation of deduction under section 80HHC. 2. It has been brought to our notice that section 80HHC has been amended by the Finance (No. 2) Act of 1991 retrospectively by virtue of which counter sales are not to be regarded to be exports out of India which do not involve clearance at any custom station as defined in the Customs Act of 1962. In this connection, reliance has been placed on the decision of the Tribunal in the case of Assessing Officer v. Gem Arts [IT Appeal No. 323 (Delhi) of 1990, dated 21-2-1994]. 3. The learned counsel for the assessee has conceded before us that section 80HHC has been amended retrospectively but has prayed that the matter m....
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....ined in the Customs Act of 1962 has been considered by 'B' Bench of the Tribunal in the case of Gem Arts where it has been held that the said expression refers to the clearance sought by the exporter as it is he in whose case the exemption under section 80HHC is allowable. It has been further held that in the case of counter sales, there is no requirement of seeking customs clearance by the exporter as per the provisions of section 80HHC. 6. We have gone through the decisions of the Tribunal cited before us by the rival parties. In fact, there is no conflict between the decisions cited by the assessee's counsel with the decision cited by the learned D.R. The Tribunal has in the cases cited by the assessee, namely, Ganeshi Lal & Sons and ....
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....enerally take an undertaking from the buyers that such goods are meant to be taken outside India. Such certiftcates are required for the purposes of getting exemption under the provisions of the Sales-tax Act. The question before us is as to whether the goods taken by the foreigners against the payment of foreign exchange involve clearance at any custom station, within the meaning of Explanation (aa) to section 80HHC. We will have, therefore, to refer to the Customs Act of 1962. Under section 2(13) of the said Act Custom Station has been defined to mean any custom port, customs airport or in land custom station. Sections 50 and 51 of the Customs Act, 1962 deal with the clearance of export goods. These sections are reproduced hereunder: "....
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....tions 77 to 84. Sections 82 to 84 deal with the goods exported by post. For the persons, who have nothing to do with import or export of goods, the customs has meaning only in the context of assessment of duty of the goods, their taking abroad as luggage. Special provisions have been made under the Customs Act laying down the procedure for declaration of baggage and determination of duty thereon. As regards the goods which are taken by the passengers no bill of export is to be filed nor is a clearance required. Only a passenger is required to make a declaration regarding the description and the value of goods the passenger is carrying. This declaration is known as baggage declaration form. At present oral declaration by the passengers is ac....
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....ods, one the assessee and another the owner of such goods, being the customer carrying the goods as his luggage. 10. We are, therefore, of the considered view that when goods are sold to the foreigners in respect of which consideration is received by the assessee in foreign exchange and the exporter takes the delivery of such goods, the custom clearance is not required within the meaning of Customs Act of 1962. Such sale would not form part of the export turnover of the assessee for the purposes of section 80HHC. 11. There would, however, be some instances where the buyers would come to India, select the goods and even make the payment in advance in respect of such goods and nevertheless the terms of the contract may provide that the ....