2014 (9) TMI 620

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....nce [VKUYL] and Focus Product Scheme [FPS] and who effected inter-State sales of the same. The learned counsel for the petitioner submits that, as declared in Vikas Sales Corporation v. Commissioner of Commercial Taxes [(1996) 4 SCC 433], licences, such as the one referred to herein, have their own value and are bought and sold as such. The DEPB, for example, is a duty entitlement conferred on the exporters in lieu of the export of their products to enable duty concessions to that extent on imports made by such exporter. If the exporter, who has obtained DEPB, does not effect any imports, he could also effect sale of the entitlement, to other persons for further sale or for enjoying the entitlement on import. 2. In the present case, the is....

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....ally states: "The judge declared the law as that "The Form C is not applicable to the transfer of credit in the passbook issued under DEPB Scheme". Nothing is stated as to where such declaration was made and in what context such declaration was made. It is unfortunate that such statements made with abject levity results in re-opening of settled issues; resulting in unnecessary harassment of dealers. The petitioner would contend that it is only on the basis of the judgment, produced as Exhibit P5, that the re-opening was made. That is also referred to in the order assailed in one of the writ petitions. The learned Government Pleader also does not point out any other judgment, wherein such declaration has been made. Looking at Exhibit P5, n....

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.... the same footing of REP licence. That question was answered in the affirmative. In fact, the fleeting apprehension raised by the Division Bench is seen to have been squarely answered by the Hon'ble Supreme Court in Yasha Overseas (supra). The learned Senior Advocate appearing for the appellants therein had raised a contention that what was sought to be taxed was the transfer of credit in DEPB and that credit could never be "goods" under the sales tax laws. The contentions raised and the answer are available in paragraphs 56 to 59 of the decision: "56. Mr.Soli J.Sorabjee, learned Senior Advocate, appearing in Civil appeal No.6893 of 2003 led the arguments on behalf of the appellants. Mr. Sorabjee referred to Entry 26(6) in Schedule C o....

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....h, according to him, laid down that in the sale of a lottery ticket what is transferred is the conditional right to claim a beneficial interest in the prize money which was movable property, not in possession of the purchaser. He also submitted that the saleability of DEPB would not make any difference because many other actionable claims were equally saleable. 59. We are afraid, we find the submission unacceptable. We are unable to see DEPB either as a debt or as a beneficial interest in movable property not in possession of the claimant. To us it is plain that DEPB like REP licence has its own intrinsic value and the purchaser, on payment of consideration, buys something for its value. DEPB credit is thus clearly "goods" within the meani....