TaxTMI 
TaxTMI 
TaxTMI 
2019 (6) TMI 494
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....el Agent Services for the purposes of service tax and is regularly paying service tax on the value of charges received. 3.The Petitioner further states that it purchased a Beechjet 400 Aircraft from M/s.RPG Enterprices Ltd., Kolkotta, for its own use. The said inter-state purchase was subjected to Central Sales Tax at 10% in Kolkatta. The said aircraft is said to have been originally imported into India in July 1992 by M/s.Aerial Services Pvt. Ltd., Mumbai and a Certificate of Registration was issued by the Director General of Civil Aviation. The said aircraft was, thereafter, sold by M/s.Aerial Services Pvt. Ltd., Mumbai to M/s.Pressman, Kolkatta, and, in turn, M/s.Pressman, Kolkatta, sold it to M/s.RPG Enterprises, Kotkatta from whom the Petitioner ultimately purchased the aircraft. The Petitioner further states that the said aircraft was, thereafter, sold by the Petitioner to the Orient Flying School, Chennai, on 08.03.2004. In respect of the said transaction of sale, the Petitioner obtained registration as a Casual Dealer on the file of the Respondent under the provisions of the TNGST Act. Subsequently, the Petitioner filed the monthly return in respect of the sale of aircr....
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....e of registration on 28.04.2004 wherein the Petitioner was classified as a casual dealer for the period from 28.04.2004 to 31.03.2005. He further submitted that the original assessment order dated 18.02.2005 for the assessment year 2004-05 was on the basis that the sale was taxable at 12% along with surcharge at 5%. The learned Senior Counsel also referred to the service tax return of the Petitioner so as to establish that the Petitioner paid service tax under the category of business auxilliary services. He further submitted that the Petitioner should not be treated as a casual dealer because the Petitioner has a place of business within Tamil Nadu. He further submitted that Section 3(2-C) was introduced by an amendment made in the year 2002 with effect from 01.07.2002 and the said Section 3(2-C) reads as under:- "Sec.3(2-C) Subject to the provisions of sub-section(1), in the case of goods mentioned in the Eleventh Schedule, the tax under this Act shall be payable by a dealer at the rate and at the point specified therein on the turnover or quantity in each year relating to such goods." 6.The learned Senior Counsel, thereafter, referred to the Impugned Order at Page 30 of the t....
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....e purposes of this Act, to have taken place in the State, wherever the contract of sale or purchase might have been made, if the goods are within the State__ (i)in the case of specific or ascertained goods, at the time the contract of sale or purchase is made;" 9.He also referred to Section 3(2-C) to point out that tax is payable by a dealer at the rate and at the point specified in the XI Schedule. He, thereafter, referred to Section 9 of the TNGST Act, which deals with the stage of levy of taxes and, in relevant part, states as under: "Section 9. Stage of levy of taxes in respect of imported and exported goods: Where in the case of any goods tax is leviable at one point in a series of sales or purchases, such series shall__ (a)in the case of goods imported into the State either from outside the territory of India or from any other State in India, be deemed to commence at the stage of the sale or purchase effected immediately after the import of such goods." 10.Thereafter, the learned counsel referred to the Full Bench Judgment of the Allahabad High Court in COMMISSIONER, SALES TAX, U.P. Vs. ALLIED CHEMICALS, KANPUR in [1969] 23 STC 1659(All). In specific, the learned coun....
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....he manufacture and sale of colour television sets, audio products and other consumer electronic products, which were imported into India from abroad through New Delhi and Mumbai and, thereafter, despatched to branch offices/warehouses located in various parts of India. The learned counsel pointed out that the Division Bench of this Court held that the power to levy customs duty on imported goods cannot curtail the power of the State Government to levy sales tax. He further pointed out that, in the said case, sales tax was levied at 20% by applying the XI Schedule because the goods were treated as imported goods. He also referred to the judgment of the Hon'ble Supreme Court in the Civil Appeal arising out of the above mentioned SONY INDIA LTD Case wherein the matter was remanded to the First Appellate Authority and the judgment of the Division Bench of this Court was set aside. He also appended the judgment of the Hon'ble Supreme Court in POLESTAR ELECTRONIC (Pvt.) LTD. Vs. ADDITIONAL COMMISSIONER, SALES TAX (1978) 1 SCC 636, to his notes on submissions, and relied upon paragraphs 6,7,8 and 11 of the said judgment wherein it was held that when the word used in the relevant ....
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....d are used for the table." He concluded his submissions by submitting that the Petitioner is not insisting on the refund claim in respect of 12% taxes paid on the sale of aircraft. 12.The affidavit, documents on record, oral submissions, points for consideration and notes on submissions of both sides were carefully considered. 13.The issues that arise for consideration in this case are whether the sale of the aircraft in Tamil Nadu on 08.03.2004 should be considered as the first sale for purposes of the TNGST Act and whether the said sale in Tamil Nadu is to be considered as the sale of an imported item notwithstanding the fact that the said aircraft was imported into India in July 1992 and, thereafter, changed hands on a couple of occasions by way of domestic sales before being brought into the State of Tamil Nadu on payment of CST. 14.As regards the first question, namely, whether the sale is to be regarded as the first sale for purposes of the TNGST Act, the contentions of the learned counsel for the Respondent are well founded. In specific, the learned counsel for the Respondent referred to various Articles of the Constitution so as to establish that legislative powers have....
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....rcraft is an imported item when such transactions were ignored for the purposes of deciding as whether it is the first sale, the learned counsel for the Respondent submitted that the geographical origin of the goods should be reckoned for the purposes of ascertaining whether the goods are imported and, therefore, taxable under the XI Schedule. He further submitted that the word 'imported' qualifies the goods and not the activity of bringing the goods into India or Tamil Nadu. 16.In a nutshell, the relevant question is whether Entry 9 of Schedule XI deals with goods of foreign origin irrespective of the manner in which the said goods entered Tamil Nadu. In this connection, it is relevant to bear in mind that words cannot be read into a taxing statute and intent is not a valid basis to construe a tax statute. In other words, the words of the relevant provision of the tax statute should be construed literally so as to discern the correct meaning and scope thereof. In the instant case, as is evident from the language of Entry 9 of the XI Schedule, the expression used is imported items falling in Parts-D and E of the I Schedule. Therefore, the meaning of the word imported items....
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....nto the State of Tamil Nadu upon payment of CST for the inter-state sale. In these facts and circumstances, at the point of sale in Tamil Nadu, the said aircraft does not qualify as an item imported into India but was an item imported into Tamil Nadu from another Indian state. In effect, the geographical origin of the goods does not qualify the goods de hors the manner of entry of the goods into the the territory of the state concerned because that would tantamount to substituting the words "items of foreign origin" instead of "imported items". As stated earlier, the meaning of words in a statute, in general, and, in particular, in a tax statute, should be gathered from the language used therein and the expression "goods of foreign origin" or "aircraft of foreign origin" cannot be substituted for or read into the words "imported items". If the intention of the State Legislature was to tax goods of foreign origin at higher rates notwithstanding the fact that the goods entered Tamil Nadu by way of inter-state sale upon payment of CST, the expression that should have been used is goods of foreign origin. In this connection, the judgment of the Five Judge Bench of the Hon'ble Supre....