TaxTMI 
TaxTMI 
2012 (11) TMI 743
X X X X Extracts X X X X
X X X X Extracts X X X X
....n filed by the petitioner to issue a writ of certiorari to call for the records on the file of the respondent herein in his TIN 33184103917/2007-2008, dated April 8, 2011 and quash the same. Heard Mr. N. Inbarajan, learned counsel for the petitioner and Mr. TR. Janarthanam, learned Additional Government Pleader appearing for the respondents. By consent, the writ petition itself is taken up for final disposal. The petitioner who is the registered dealer on the files of the respondent under the Tamil Nadu Value Added Tax Act 2006 (hereinafter referred to as, "the TNVAT Act, 2006"), and is engaged in the business of buying and selling granites. The issues relating to refund of input-tax credit in both the writ petitions are relatab....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... prescribed:- (i) A sale as specified under sub-section (1) or (3) of section 5 of the Central Sales Tax Act, 1956 ; (Central Act 74 of 1956). . ." The claim of the petitioner for refund of tax was considered by the Assistant Commissioner (CT), Pudukkottai and in proceedings in TIN. 33184103917/2006-2007 dated September 10, 2008, the refund application was considered in the light of the G. O. Ms. No. 39/Commercial Taxes and Registration (A) Department, dated February 5, 2007 and VAT Circular No. 71 of 2006 dated December 18,2006 and 18 of 2007 dated September 6, 2007 and the Commissioner of Commercial Taxes, Chennai, Ref. VAT Cell/ 37009 of 2007 (VCC No.1086) dated August 21, 2007. Taking ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) of the TNVAT Act, 2006. Hence the entire refund of Rs. 59,35,755 claimed and made is not in order." The notice was issued under section 19(16) of the TNVAT Act, 2006. The petitioner submitted a detailed reply on March 24, 2011 refuting the claim of the Department, inter alia, contending that the sale to 100 per cent E.O.U is covered by section 5(3) of the CST Act, 1956 and it is zero rate sale in terms of section 18(1) of the TNVAT Act, 2006. The specific point raised by the petitioner in the reply is set out as hereunder:- "It is a penultimate sale to an exporter which comes under section 5(3) of the CST Act, 1956. By way of repetition we submit that we have effected a sale to an exporter who has exported the sam....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ther the sales made to the 100 per cent EOU will fall under the definition of zero rated sales in terms of section 18 of the TNVAT Act, 2006. The fact is that the petitioner is entitled to take input-tax credit or refund of tax amount paid in a purchase of the goods specified in the First Schedule treating it as a zero rated sale if it is a sale specified under subsections (1) and (3) of section 5 of the CST Act, 1956. Therefore, the primary issue that has to be considered, is whether section 5(1) and (3) of the CST Act, 1956, is attracted to the facts of the present case. Section 5(1) and (3) of the CST Act, 1956 reads as follows:- "5. When is a sale or purchase of goods said to take place in the course of import o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Act, 1956 specifically covers a sale in this case. In this case, the petitioner has sold the goods to Tab India Pvt. Ltd., a 100 per cent EOU and the documents submitted by the petitioner to the competent refund authority clearly satisfied the requirements that the sale was for the purpose of export of goods outside the territory of India by the EOU and it is in the course of export. Section 18(1) of the TNVAT Act, 2006 and section 5(3) of the CST Act, 1956, clearly apply to the facts of the petitioner's case. The sale in this case falls under section 5(3) of the CST Act, 1956, and then section 18(1) of the TNVAT Act, gets attracted. In such view of the matter, by virtue of section 18(1) of the TNVAT Act, 2006 the petitioner is e....