TaxTMI 
TaxTMI 
1993 (10) TMI 309
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.... also the 1956 Act. During the four quarters ending C.S. 2038 R.N., he had placed orders for supply of certain goods with a party in Japan and had obtained import licence for importation of the said goods which were despatched by the foreign party to the applicant at Calcutta. The applicant had also entered into various contracts with different parties at Calcutta and Rajkot for sale of the goods to be imported and accordingly he had sold the goods so imported by transfer of documents of title to the goods, before the goods had crossed the customs frontiers of India. Therefore, in the returns filed for the four quarters ending C.S. 2038 R.N., the applicant had claimed exemption under section 5(2) of the 1956 Act in respect of the aforesaid sales. But in course of assessment for the said period, respondent No. 1 disallowed the sales, treating the same as under the 1941 Act and levied tax at the rate of 8 per cent. Further, respondent No. 1 also disallowed the applicant's claim under section 5(1)(aa) of the 1941 Act on the ground of inability to produce declaration forms. Out of the claim under section 5(2) of the 1956 Act, respondent No. 1 allowed only a sum of Rs. 52,362.24, disal....
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....t, and such rejection was illegal and untenable. 3.. Respondents' case in the affidavit-in-opposition is that out of five sales claimed to be sales in the course of import, in three cases, agreements were allegedly made by the applicant with his buyers, after the goods had crossed the customs frontiers of India. In the other two cases, delivery of the goods was taken by the applicant himself. The orders passed by respondents 1, 2 and 3 have been defended. It is pointed out that in the case of sale to Associated Synthetics (P) Ltd. of Calcutta, offer of sale was given on April 1, 1980, the bill was raised by the applicant on April 4, 1980 but endorsement on the bills of entry was dated March 20, 1980 stating therein that the goods were there- by sold. Similarly, in the case of sale to National Moulding Co. of Calcutta, the offer for sale was accepted by the buyer on April 1, 1980, the bill was raised by the applicant on April 4, 1980, but the offer of sale was accepted and confirmed by a Director of the buyer company on the bill dated April 4, 1980, whereas the acceptance of the offer for sale dated April 1, 1980 does not bear any seal of the buyer company, nor does it show the sta....
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....orm now being produced could not be obtained by the petitioner before the date of hearing of the assessment case." Elsewhere also in course of the same order, the Assistant Commissioner observed that the applicant could not avoid the onus of proving that, in spite of best efforts, he was really prevented by "extraneous reasons" from producing statutory forms in support of the claims under section 5(1)(bb) or 5(1)(aa). Mr. Sumit Chakraborty, learned advocate for the applicant, pointed out that letters were produced before the appellate authority to the effect that in spite of reminders, the purchasing dealers did not furnish the declaration forms up to the time of assessment. After hearing the rival contentions and having regard to the materials produced in support of the contention that the declaration forms were not available up to the date of assessment, we are of the opinion that the authorities below did not properly apply their discretion under the proviso to rule 27A(9) of the 1941 Rules. We are of the opinion that the materials produced are sufficient to discharge the burden of proof upon the applicant. The applicant has proved that he was prevented by sufficient cause from....
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....as such have not been disputed or disbelieved, the observation in the assessment order regarding the two sales to Trishul Industries amounts to the same observation as in the other three cases. In the appellate order dated November 18, 1986, Assistant Commissioner observed that, in every case, the sale was effected after the imported goods had crossed the customs frontiers of India. The West Bengal Commercial Taxes Tribunal in its revisional order dated December 20, 1991 held as below at page 3 of the order: "The goods were sold after they reached the customs' station in all cases". It will thus appear that the Assistant Commissioner and the Tribunal below did not make any distinction between the first three sales and the two sales to Trishul Industries. 7.. Mr. Sumit Chakraborty, learned advocate for the applicant, rightly relied on the decision in the case of Mohinder Singh Gill v. Chief Election Commissioner AIR 1978 SC 851 at page 858 and argued that the respondents cannot improve upon the impugned orders of the quasi-judicial authorities through the affidavit- in-opposition. Mr. Chakraborty submitted that the impugned orders of the assessing officer, the Appellate Assistant....
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....sment order, it was stated that in the case of Trishul Industries delivery of the goods was taken by the applicant through his clearing agent. But the last fact-finding authority, namely, the Tribunal below did not stick to that position and held that all the sales were effected after the goods reached the customs station. In this connection, Mr. Chakraborty drew our attention to the claim made in paragraph 15 (ought to be 16) of the application to the effect that the goods were cleared by the buyers who paid customs duty. In paragraph 12 of the affidavit-in- opposition, while dealing with that statement, this claim was not denied. According to the respondents, the goods crossed customs frontiers of India upon unloading thereof from the ship and bringing them into the customs station. Mr. Majumdar, learned State Representative, submitted that customs station has its own limits or boundaries; if the inner limit or boundary of the customs station along the watery area is crossed, the customs frontiers of India are crossed. In other words, according to Mr. Majumdar, crossing of the inner boundary of the limits of the customs station from the direction of the watery area amounts to cro....
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....ore clearance by customs authorities. Thus, limits of the area of a customs station appearing in section 2(ab) of the 1956 Act means the limits of the area of any customs port, and here, of the Calcutta port. It was common ground that the limits of the area of the customs station of the Calcutta port extended from its inner boundary abutting the watery area where the ship had arrived upto the outer boundary where the clearance of goods was effected and from where the goods were taken out for being freely dealt with inside the country. So long as the goods were in the customs station, those could not be utilised or dealt with inside the country by the owner. So long the goods were not cleared by the customs authorities upon payment of due customs duty, the goods remained within the customs station and were not available to the owner for his purpose. If we refer to section 47 of the 1962 Act, it will appear that the clearance is to be given by the appropriate officer of the Customs Department, when he is satisfied that the goods are for home consumption, are not prohibited goods and that import duty and any other payable charges have been paid in respect of the same. Upon reading the....