TaxTMI 
TaxTMI 
1998 (9) TMI 649
X X X X Extracts X X X X
X X X X Extracts X X X X
....ales by way of exports to Nepal which claim has been rejected and the figure included in the sales of the petitioner taxable @ 12% during the year 1994-95 vide order of assessment Annexure-C. 4. Shri Krishna Engineering Co. the petitioner in CWP 3154/97 made a similar claim of export sales having been made to Nepal for the period of assessment 1992-93 which has been disallowed and the figure included in the sales liable to tax vide assessment orders Dated 27.3.97 Annexure-D collectively. 4.1 For the purpose of completing the assessment for the year 1992-93 the petitioner was asked to produce documentary proof of export to Nepal. through land frontier. The petitioner approached the office of the Additional Commissioner of Customs, Muzafarpur, who vide letter dated 28.4.1997 informed the petitioner that for documentary proof export to Nepal through land frontier the petitioner may obtain certificate from the respective land customs station from where the goods had crossed the Indian Border and entered Nepal. 5. S.K. Jain, proprietor of M/s. Puran Chand and Sons the petitioner in CWP 3606/97 claimed deduction of a figure of sales of Rs. 3,11,466/- shown as exports made to Nep....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sed, Bank Certificate number and date of realisaton; (v) Name and full address of the buyer; (vi) Shipping bill/bill of Export No. and date of certificate of Custom Officer certifying that the goods have crossed the frontier of India; While all these proofs are important the most important is the last one i.e. the certificate of the custom officer certifying that the goods have crossed the customs frontiers of India into Nepal or Bhutan. 10. Therefore, the Assessing Authorities are to ensure that these documents are supplied by the exporters. Certificates from Nepal or Bhutan Govt. Authorities cannot be taken into account as they are issued by a foreign government and cannot be cross verified. 11. No other circumstantial evidence can be accepted particularly in the absence of certificates of India Customs Authorities. Similarly the proof of receipt of payment which underscores that India has not lost out in the process is the other substantial proof. sd/- (B.P. Misra) Commissioner: Sales Tax. 6.3 OFFICE OF THE COMMISSIONER OF SALES TAX BIKRIKAR BHAWAN: MSO-II, NEW DELHI-2 F.No. 3(230)/92-PPR/1275-1548 Dated :13.5.97 Circular No. 2 of 1997-98 T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce though reliable and worthy of credence is being discarded by the assessing authorities because they insist on the documents being produced only in accordance with the above said instructions issued by the Commissioner of Sales Tax and in the event of their failure to fulfill the directions contained in the said circulars the assessing authorities simply refuse to look into the evidence as above said. They do not even apply their mind if the documentary evidence made available by the dealers as above said is sufficient to satisfy them of exports to Nepal having been really made by the dealers. 8. With regard to the Reserve Bank of India export Code No. it was submitted that for export to Nepal no foreign exchange is involved and therefore no code No. was required from the R.B.I. with regard to the certificate from the Indian Customs Authorities, it was pointed out that the goods were sent through transporters who in turn have the goods cleared and delivered to the purchasers in Nepal. The tax authorities of the State of U.P. through which the goods have to pass while moving from Delhi to Nepal, have certified the goods having entered into the State of U.P. In transit and left....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nts. (51) Clearance of goods for exportation: Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any assessed thereon and any charges payable under this Act in respect of the same, the proper office may make an order permitting clearance and loading of the goods for exportation. 9.3 Attention was also invited to the Shipping Bill and Bill of Export (From) Regulations, 1971 wherein it is provided that Bill of Export is to be presented by an exporter of goods in the forms specified in the Regulations. 9.4 It was submitted by the learned counsel for the respondents that in view of the above said provisions and the procedure laid down by the Customs Department for dealing with the goods crossing the Indo-Nepal Border it should not be difficult for the petitioner to obtain documentary evidence in proof of such exports from India to Nepal covering sales transactions in respect of which the exemption was being claimed. 10. The learned counsel for the petitioners submitted that in framing the assessment, the assessing authority mechanically followed the directions of the Commissioner without co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reunder shall be deemed to impose, or authorise the imposition of a tax on any sale or purchase of any goods when such sale of purchase takes place: (i) In the course of inter-State trade of commerce; or (ii) Outside Delhi; or (iii) in the course of the import of the goods into or export of goods out of the territory of India. Explanation: Section 3, 4 and 5 of the Central Sales Tax Act, 1956 (74 of 1956) shall apply for determining whether or not a particular sale or purchase takes place in the manner indicated in clause (i) clause (ii) or clause (iii) of this section. 12. From a reading of the aforesaid provisions, it is clear that the sales in the course of export of goods out side India are not liable to tax. No law of a State can authorise imposition of tax on such sales. There is no provision in the Constitution, Central Sales Tax Act and Delhi Sales Tax Act or in the rules made thereunder laying down any particular or specific mode of proof for determining claim of non-liability to tax on transactions involved in export of goods outside India. The assessee can establish export of goods outside India by adducing evidence such as the agreement or contract or ord....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... number of the Exporter, Import Export Code No. of the Exporter, description of goods etc. The dealer/petitioner was required to furnish the requisite certificate from the Customs Authorities in accordance with Circulars and since the dealer was unable to produce the requisite certificate, the claim for deduction on account of the export sales was disallowed. The Delhi Sales Tax Act and the rules, the Central Sales Tax Act and the Constitution of India, do not prescribe any particular declaration/certificate only being accepted as evidence for establishing export. Insistence on a certificate from the Indian Customs Authority as the only acceptable piece of evidence while ignoring all the other evidence on record and denying relief to the assessee is without sanction of law and is, therefore, liable to be struck down. 15. The officials of the Sales Tax Department are administrative authorities. However, such of the officials as are vested with jurisdiction to assess the business transactions of the dealers to tax, discharge function which is judicial in nature. The function though administrative is obliged to be performed with judicial approach and hence becomes quasi-judicial. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r Section 37-B of the Central Excises Act, 1944 the Central Board of Excise and Customs may issue orders, instructions and directions to the Central Excise Officers. In Orient Paper Mills Ltd. Vs. Union of India, (1978) 2 ELT (J 345), their Lordships have held that a quasi-judicial power cannot be controlled by the directions issued by the Board. No authority, however high placed can control the decision of a judicial or a quasi-judicial authority. That is the essence of our judicial system. Their Lordships have also quoted from Mahadayal Premchandra Vs. CTO, Calcutta & Anr., where in Assessing officer acting on the basis of instructions from superiors was held to have vitiated the entire proceedings. Their Lordships have further held: "That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authority in the matter of deciding disputes between the persons who are called upon to pay duty and the department. It is true that the assessing authorities as well as the appellate authorities are judges in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... In Delhi General Sales Tax Act, there is no provision which authorises the Commissioner of Sales Tax to issue such instructions as may bind the assessing authorities in discharge of their adjudicator functions. During the course of hearing, we have asked the learned counsel for the respondents to show the source of power where from the impugned circulars have originated. The learned standing counsel submitted that there was no specific statutory provision as such, but the instructions were issued under the general administrative power vesting in the superior officers in the hierarchy of the system and were issued for safeguarding the public interest and the interest of the revenue in as much as large scale evasion of sales tax in the name of export transactions was brought to their notice. How so ever laudable may be the intentions of the Commissioner of Sales Tax, we are very clear in our mind that such instructions could not have been issued as take away the discretion vesting in the assessing authorities discharging quasi-judicial function of making assessments. 28. It may be that large scale evasion of Sales Tax by unscrupulous traders was brought to the notice of the Comm....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the year 1992 from the Customs check post situated at the Indo-Nepal border. 30. The adjudicator discretion vesting in the assessing authorities cannot be bound down by the dictates from the superiors if not so warranted or permitted by the statute. The assessing authorities should be left free to active at findings from case to case depending on the reality and accept-ability of the material brought on record of each individual case. To put it in the context of the cases at hand, the assessing authority could not have been obliged to hold the goods having not been exported to Nepal solely for non-production of the requisite certificate from the Indian Custom Officers; even in the absence of such certificates the assessing authority should not have been inhibited from holding the sale transactions to be export sales if on the material available and brought on record by the assessee it was possible to hold so. 31. To sum up, the Commissioner of Sales Tax being so placed in the hierarchy of the department can issue instructions to his subordinates but in the administrative field only. No provision in the law of sales tax has been brought to our notice by the learned counsel fo....