TaxTMI 
TaxTMI 
1990 (2) TMI 276
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....effect: "It appears that an amount of Rs. 8,08,869.78 has been wrongly allowed as a claim under section 5(2)(a)(v) of the Bengal Finance (Sales Tax) Act, 1941. It is, therefore, necessary to revise the order of the Commercial Tax Officer to bring the amount of Rs. 8,08,869 under the levy of tax. A statement of sales which is proposed to be disallowed is enclosed herewith." In C.R. No. 14181(W) of 1976, the petitioner has challenged a notice in form No. IX dated 28th October, 1976, issued by the Commercial Tax Officer, Radhabazar Charge, relating to the year ending 31st December, 1971, whereby the said Commercial Tax Officer has proposed to pass the following order: "In the assessment under the Bengal Finance (Sales Tax) Act, 1941, for 'the year ending 31st December, 1971, a sum of Rs. 2,39,27,139.66, which represented sales to the State Trading Corporation of India was wrongly allowed as claim for export sales under section 5(2)(a)(v) of the Act. To rectify the said mistake the assessment order will be reviewed by bringing the amount of Rs. 2,39,27,139.86 under the levy of tax." In C.R. No. 11288(W) of 1976, the petitioner has challenged a notice dated 23rd April, 1976,....
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....he petitioner in the course of export. As the Commercial Tax Officer disallowed certain other claims made by the petitioner, the petitioner preferred an appeal before the Assistant Commissioner of Commercial Taxes which was pending at the time when the said Writ Petition being C.R. No. 11287(W) of 1976 was moved. While the said appeal was pending the Assistant Commissioner issued the Memo No. 3741 dated 18th June, 1976, proposing to revise the assessment order suo motu with the intention to disallow the claim made under section 5(2)(a)(v) of the Bengal Act which was originally allowed. As regards the year ending 31st December, 1971, the original assessment was made by one G.C. Mondal, the Commercial Tax Officer, Radhabazar Charge, who after examining the entire facts and evidence allowed the claim made by the petitioner under section 5(2)(a)(v) of the Bengal Act including the exports made by the petitioner through STCI. The notice which is now under challenge in C.R. No. 14181(W) of 1976, however, has been issued by another Commercial Tax Officer who is successorin-office to G.C. Mondal. On the above facts the petitioner has challenged the three several notices which are the ....
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....li Sastri, C.J., observed at page 212 of STC, 62 of SCR: 'The word "course" etymologically denotes movement from one point to another, and the expression "in the course of" not only implies a period of time during which the movement is in progress but postulates also a connected relation.' As regards the limits of the course, the learned Chief Justice observed at page 216 of STC (68 of SCR): 'It would seem, therefore, logical to hold that the course of the export out of, or of the import into, the territory of India does not commence or terminate until goods cross the customs frontier.' Das, J., as he then was, in his dissenting judgment practically agreed with Patanjali Sastri, C.J., on the interpretation of the said words. The learned Judge expressed his view at page 92, thus: 'The word "course" conveys to my mind the idea of a gradual and continuous flow, an advance, a journey, a passage or progress from one place to another. Etymologically it means and implies motion, a forward movement. The phrase "in the course of" early has reference to a period of time during which the movement is in progress. Therefore, the words "in the course of the import of the go....
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....rported to have been created in view of the decision of the Supreme Court in Mod. Serajuddin v. State of Orissa reported in [1975] 36 STC 136 and by applying the said later decision of the Supreme Court the sales tax authorities were purporting to disallow the claim made by the dealers under section 5(2)(a)(v) of the Bengal Act read with section 5 of the Central Act and article 286(1)(b) of the Constitution of India. It is in this context the Central Sales Tax (Amendment) Act, 1976, was passed by the Parliament which received the assent of the President on September 7, 1976. Section 2(a) of the said-Amendment Act of 1976 inserted, inter alia, clause (ab) to section 2 of the CST Act which provides as follows: "(ab) 'crossing the customs frontiers of India' means crossing the limits of the area of a customs station in which imported goods or export goods are ordinarily kept before clearance by customs authorities. Explanation.-For the purposes of this clause 'customs station' and 'customs authorities' shall have the same meanings as in the Customs Act, 1962;" Section 2(13) of the Customs Act, 1962, defines "customs station" which means any customs port, customs airport or land ....
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....oms barrier and entered into the export stream. Therefore, apart from the fact that the decision of the Supreme Court in Mod. Serajuddin's case [1975] 36 STC 136, is factually distinguishable, even applying the ratio laid down by the Supreme Court in the said decision to the facts of the present case the claim made by the petitioner must be allowed. In that view of the matter all the export sales including the sales made by the petitioner through STCI to foreign buyers squarely comes under article 286(1)(b) of the Constitution of India and section 5 read with section 2(ab) of the CST Act and the said sale proceeds cannot be included in the taxable turnover of the petitioner under section 5(2)(a)(v) of the Bengal Act for any of the three years concerned in the present three writ applications. The view expressed by the Commercial Tax Officer in making the original assessment accepting the claim of the petitioner under section 5(2)(a)(v) of the Bengal Act for the years 1970 and 1971 was, therefore, a correct one which was in consonance with the law laid down by the earlier decisions of the Supreme Court in Shanmugha Vilas' case [1953] 4 STC 205 and J.V. Gokal & Co's case [1960] 11 ....