TaxTMI 
TaxTMI 
2026 (2) TMI 327
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....he assessment of the petitioner for the year 2013-14 had been completed by the 3rd respondent, by his Order dated 06.07.2015. In this assessment order, the 3rd respondent accepted the claim of the petitioner for exemption on a turnover of Rs. 120,58,52,518/-, on the ground that these were export sales. Thereafter, the 2nd respondent initiated revision proceedings which resulted in an Order of revision, dated 28.06.2019. By virtue of this order a turnover of Rs. 123,49,01,931/- was sought to be taxed. 3. The 2nd respondent sought to bring the entire turnover to tax on the following grounds:- I. The purchase orders given by the foreign buyers had not been produced and only the bills of lading and sale invoices issued by the foreign buyers were being produced. These documents would have to be rejected as the documents filed by the petitioner only prove that the sales made by the petitioner are export sales and are not in the course of export. The 2nd respondent relying upon the Judgments of the Hon'ble Supreme Court of India, in the case of Ben Gorm Nilgiri Plantations Company, Coonoor & Ors Vs. Sales Tax Officer, Special Circle, Ernakulam & Ors 15 STC 753 as well as in th....
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....s brought in by virtue of the Article 286 (2) of the Constitution of India, which reads as follows:- 286. Restrictions as to imposition of tax on the sale or purchase of goods 1. No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place.- (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India. 2. Parliament may by law formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in clause (1). 3. ..... 7. The 2nd respondent appears to have understood the words "in the course of export" to mean that the sale of goods carried out by the petitioner would not meet the requirement in Section 5(1), on the basis of the dictum laid down by the Hon'ble Supreme Court in the case of Ben Gorm Nilgiri Plantations Co. v. Sales Tax Officer 1964 SCC OnLine SC 149: (1964) 7 SCR 706: (1964) 2 SCJ 693: AIR 1964 SC 1752. In this case, a manufacturer of processed tea, had sold it's tea, by way of public auction, to an agent or an intermedia....
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....emaining petitions in which affidavits in reply were filed it was contended that the export of goods was made by the purchasers who had taken delivery of the goods from the manufacturers in Travancore-Cochin and in pursuance of the export licences obtained by the purchasers goods were exported, but such subsequent export by the purchasers did not affect the character of the sales by the manufacturers to the purchasers. It is true that there is no finding by the Sales Tax Authorities that the respective purchasers at the auctions were agents of foreign buyers, but the Advocate appearing on behalf of the State argued the case before the High Court on the footing that the bids were offered at the auctions by the agents or intermediaries of foreign buyers, and the Court proceeded to dispose of the case before it on that footing. 7. To constitute a sale in the course of export of goods out of the territory of India, common intention of the parties to the transaction to export the goods followed by actual export of the goods, to a foreign destination is necessary. But intention to export and actual exportation are not sufficient to constitute a sale in the course of export, for ....
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....urchaser deals with the goods. Such a transaction without more cannot be regarded as one in the course of export because etymologically "in the course of export" contemplates an integral relation or bond between the sale and the export. At the other end is a transaction under a contract of sale with a foreign buyer under which the goods may under the contract be delivered by the seller to a common carrier for transporting them to the purchaser. Such a sale would indisputably be one for export, whether the contract and delivery to the common carrier are effected directly or through agents. But in between lie a variety of transactions in which the question whether the sale is one for export or is one in the course of export i.e., it is a transaction which has occasioned the export, may have to be determined on a correct appraisal of all the facts. No single test can be laid as decisive for determining that question. Each case must depend upon its facts. But that is not to say that the distinction between transactions which may be called sales for export and sales in the course of export is not real. In general where the sale is effected by the seller, and he is not connected with the....