TaxTMI 
TaxTMI 
1980 (12) TMI 178
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....equivalent, details of foreign currency, seaport or airport of embarkation, date of tourist departure, etc., were required to be entered. It also required to bear the signature and seal of the customs besides signature of the tourist and exporter. The purchaser is totally prohibited from selling or disposing off these things in any part of the country. From these, the intention on the part of the buyer and seller to an export obligation and contract giving rise to export was found established. In order to appreciate the view taken by the revising authority it is necessary to quote section 5 of the Central Sales Tax Act, 1956, which reads as under: "5. When is a sale or purchase of goods said to take Place in the course of import or export.-(1) A sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India. (2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of ....
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....rse of export for the seller does not export the goods, and it is not his concern as to how the purchaser deals with the goods. Such a transaction without more cannot be regarded as one in the course of export because etymologically 'in the course of export' contemplates an integral relation or bond between the sale and the export." This passage has been relied on by the learned counsel for both parties. The learned counsel for the assessee emphasised on the observation, "such a transaction without more cannot be regarded as one in the course of export" and urged the ratio of this case did not apply as there was "more" in this case which resulted in making the sale "in the course of export". The learned counsel argued that in National Carbon Co. v. Commissioner of Sales Tax [1969] 23 STC 388 (FB) it was held by a Full Bench of this Court: "From what has been stated above, it is clear that the destination of the goods shown in form AR-4 was a place in Nepal and the route by which the goods were intended to be exported was also indicated. The name of the buyers mentioned in that form also is that of the dealer of Nepal. These facts show very clearly not only the intention of th....
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.... article 286 as it stood prior to its amendment on 11th September, 1956." It was also urged that passing of title in the Indian territory was immaterial. Whether the title passed in the Indian territory or foreign territory, according to the learned counsel, did not make any difference as for deciding whether the sale was in the course of export, what had to be seen was whether the sale had occasioned the export. Attention was drawn to Commissioner of Sales Tax v. Dhampur Sugar Mills Ltd. [1970] 26 STC 65, where the sale was held to be in the course of export although the delivery of goods was made to foreign buyers within the Indian territory. In this connection the learned counsel relied on the following observation in Union of India v. K.G. Khosla and Co. Ltd. [1979] 43 STC 457 (SC); 1979 UPTC 751 (SC) that a sale which occasions movement of goods from one State to another is a sale in the course of inter-State trade, no matter in which State the property in the goods passes. In Coffee Board, Bangalore v. Joint Commercial Tax Officer [1970] 25 STC 528 (SC) it was held: "The phrase 'sale in the course of export' comprises in itself three essentials: (i) that there mus....
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....of the importing country." The decision in National Carbon Co. [1969] 23 STC 388.(FB) and Dhampur Sugar Mills [1970] 26 STC 65 cannot be of any assistance. They were cases relating to export to Nepal and Mahe, erstwhile French territory, where there was no mode of transport and therefore the goods had to be handed over in the Indian territory. In the instant case, it is true that the buyer is foreigner, the purchases have been made against foreign currency and there is total prohibition on sale of goods in India. But do these give rise to sale which can be said to be in the course of export. What is meant by sale in the course of export has been explained above. The making of sale in pursuance of export promotion scheme or in accordance with terms and conditions mentioned therein do not make a sale in the course of export. The sale may have been made with intention that goods sold shall be taken out of India. And the goods may ultimately cross the Indian border. But these by themselves do not result in a sale in the course of export. It is the sale which must occasion the export. Can it be said the sale occasioned export? No, because all the stages of sale, namely, agreeme....