AI Drafter 
TaxTMI 
TaxTMI 
2022 (1) TMI 1117
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....l Sales Tax, 1956? 2. Whether the Hon'ble Tribunal is correct in stating that only the party actually exporting the goods alone can be said to affect sale in the course of export 'occasioning' such export? 3. Whether central sales tax is payable on the goods even if it is conclusively proved by documentary evidence that the goods have been exported proved by reason of failure to furnish 'F Forms'? 4. Whether filing of 'F Form' is mandatory when the goods are not supplied by a dealer to his place of business or his agent or principal?" 3. The petitioner - assessee is a manufacturer and dealer of consumer goods under provisions of the Karnataka Value Added Tax Act, 2003 and the Central Sales Tax Act, 1956 ('CST Act' for short). The returns in Form VAT 100 were filed by the assessee for the period under consideration i.e., 2005-06 to 2008-09. The Assistant Commissioner of Commercial Taxes (Assessing Authority) re-assessed the returns and disallowed the exemption claimed under Section 5(1) of CST Act on the ground that the petitioner had effected stock transfer and not a sale in the course of export. Being aggrieved, the petitioner preferred appeals before....
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....arned Additional Government Advocate appearing for the State justifying the impugned orders submitted that the orders of the authorities have been rightly considered by the Tribunal, examining the factual aspects in the light of Section 5(1) of the CST Act. There being no inextricable link established between the goods stock transferred and exported, it has been rightly held that the goods have moved from the branch office to the head office for export but not in the course of export to attract the provisions of Section 5(1) of the CST Act. The same being in conformity with the settled principles of law, no interference of this Court is warranted. 6. We have carefully considered the arguments advanced by the learned counsel appearing for the parties and perused the material on record. 7. Section 5(1) of the CST Act reads thus: "5. When is a sale or purchase of goods said to take place in the course of import or export.- (1) A sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to ....
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....annot be regarded as taking place in the course of export of the goods out of the territory of India within the meaning of Section 5(1) of the CST Act as it stood before 01.04.1976. The Hon'ble High Court of Punjab & Haryana held that the Tribunal seriously erred in invoking the ratio of the decision of the Hon'ble Apex Court in the case of Mohd. Sera Juddin vs. The State of Orissa [(1975) 36 STC 136] without applying mind to the background in which the observations were made by the Hon'ble Apex Court. 10. The said judgment of the Hon'ble High Court of Punjab and Haryana in M/s Nipha Exports Pvt. Limited has been confirmed by the Hon'ble Apex Court in Civil Appeal No.6823/2000 and connected matters [(2007) 8 VST 466 (SC)]. It has been categorically held that the view taken by the Hon'ble High Court that the movement of the goods from Faridabad to Calcutta was occasioned in the course of export out of India and there could be no sale between the branch office and the head office was justifiable. 11. In the case of Madhur Trading Co. v. State of Karnataka [ILR 1993 Kar 594], the co-ordinate bench of this court has considered the expression "in the course" and....
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....h such activities." The Supreme Court referred to its earlier Decision in Coffee Board case to point out that "sale in the course of export" comprised of three essentials: "... First, there must be a sale. Second, goods must actually be exported. Third, the sale must be a part and parcel of the export. The propositions laid down in the Coffee Board case are these: The sale which is to be regarded as exempt is a sale which causes the export to take place or is the immediate cause of the export. To establish export a person exporting and a person importing are necessary elements and the course of export is between them. Introduction of a third party dealing independently with the seller on the one hand and with the importer on the other breaks the link between the two, for then there are two sales, one to the intermediary and the other to the importer. The first sale is not in the course of export because the export commences with the intermediary. The tests are that there must be a single sale which itself causes the export or is in the progress or process of export. There is no room for two or more sales in the course of export. The only sale whi....
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....f State of Tamil Nadu v. Bombay Metal Depot [1978] 41 STC 140, wherein the court has observed : (iv) that where the description of the goods is clear and such goods have been sent in conformity with such description and have also been accepted by the purchaser on the basis that they conformed to the description, there is ascertainment and appropriation of the goods to the contract. Where the goods are ascertainable and goods of that description are despatched then the goods so despatched can be taken as appropriated to the contract unconditionally. The circumstance that the purchaser has a right of rejection does not postpone the transfer of property in the goods. The Allahabad High Court in the case of Swastik Rubber Products (P) Ltd. v. Commissioner of Sales Tax, while rejecting the plea of stock transfer as contended by the assessee, held that the movement of goods took place from one State to another and further, the transfer invoices denote the same quantity and the value of goods which were in the sale bill of the consignee State depot. This was dispatched to the identified customers. In other words, such dispatches from one State to another ....