TaxTMI 
TaxTMI 
2026 (1) TMI 1223
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....t "CST Act") is burdened with a penalty under the provisions of the Section 67 of the KVAT Act with respect to the assessment year 2016-17, by the order at Ext. P27, issued by the 1st respondent. It is seeking to challenge the order imposing penalty as above, this writ petition has been instituted by the petitioner. 2. The short facts necessary for the disposal of the writ petition are as under: The petitioner is stated to be a company having registration under the provisions of the Companies Act, 1956, with its registered office at Mumbai, with a branch in Kerala and other branches across the country. The petitioner is a manufacturer-cum-dealer of medical, electronic and electric equipments. It has also obtained registration under th....
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.... the German supplier, a reference was also made to the ultimate consumer - the 4th respondent herein. In turn, when the foreign supplier issued a confirmation as evidenced by Ext.P8, a reference had also been made to the order placed by the 4th respondent herein. On the basis of the afore, the foreign supplier issued Ext.P9 invoice with respect to the medical equipment in question. The equipment in question was consigned by sea as evidenced by Ext.P10 - Sea Way Bill. True, the petitioner filed the Bill of Entry for home consumption as evidenced by Ext.P11. Later, the goods in question have been sold by the petitioner to the 4th respondent on the basis of separate invoices raised by it, and the afore invoice did not visualise any colle....
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....he learned counsel for the petitioner, would contend with reference to the factual situation noticed as above that the transaction in question does not attract any liability under the KVAT Act insofar as the sale was a sale in the course of import as provided under the provisions of Section 5(2) of the CST Act. He would also seek to rely on the order of the Appellate Tribunal at Ext.P23, as well as the Judgment in the assessee's own case, rendered by a Division Bench of this Court in State of Kerala v. Seimens Ltd. [(2017) 102 VST 157 (Ker)]. He would also add that the assessment for the year in question has since been completed by the assessing authority [Deputy Commissioner (Assessment) Special Circle - II, Ernakulam] dated 15.03.2021....
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....tain the item in question from its counterpart in Germany and none else. It is on that basis, the petitioner placed the purchase order on the foreign supplier, as evidenced by Ext. P7. In the confirmation issued by the foreign supplier also, as noticed earlier, the order placed by the customer in India is specifically referred to. From this, in my opinion, there is an inextricable link between the purchase order placed by the 4th respondent herein and the ultimate importation effected by the petitioner, which has ultimately resulted in the sale being effected by the petitioner to the 4th respondent. The only contention taken by Sri. Sri. Alan Priyadeshi Dev, the learned Government Pleader, as noticed earlier, is to the effect that insofar a....
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.... 15. The purchase order issued by MMDC also contained various terms among which it is stated that the respondent had procured the equipment from Siemens, Germany and none else and that they shall import the equipment for the purpose of delivery thereof to MMDC at the address specified in the purchase order. It is also provided that the respondent shall not deliver the equipment of the above type from any other source or from their stock in India or otherwise and that it was specifically and mutually understood that the above equipment is imported from abroad into India solely and specifically for the purpose of the present contract. There is a specific provision that the equipment imported shall be delivered to MMDC and shall not be div....
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....nly question to be noticed is as to whether there is an inextricable link between the transactions. As noticed earlier, there is a link between the purchase order placed by the 4th respondent, import effected by the petitioner, and the ultimate sale effected by it. This Court also notices the Judgment of another Division Bench of this Court in BPL Telecom Ltd. v. State of Kerala [(2009) 23 VST 264 (Ker)], wherein also an almost similar circumstance has been considered and the claim of exemption under Section 5(2) of the CST Act extended, even in a situation where the importer had filed the Bill of Entry with the customs. 10. With reference to the Judgment of the Apex Court in M/s. Binani Bros. (P) Ltd. (supra) relied on by Sri. Alan, thi....