Decided on June 09,2011

Dr. Fulkant Jha Appellant
Sales Tax Officer, Bowbazar Charge And Others Respondents


- (1.) IN this application, the petitioner is the proprietor of the business carrying on under the name and style of M/s. J.F.K. International having its registered office at 5, Khairu Place, 2nd floor, Ganesh Chandra Avenue, Kolkata: 700 072. The present application under section 8 of the West Bengal Taxation Tribunal Act, 1987, is filed by the applicant praying for quashing/setting aside the order dated February 2, 2011, passed by the Senior Joint Commissioner of Commercial Taxes, Dharmatala circle (respondent No. 2), confirming the order dated September 22, 2010 passed by the Sales Tax Officer, Bowbazar charge (respondent No. 1) rejecting the application for issuing declarations in form 12A filed by the applicant. The case of the applicant, in gist and to the point, is that as a reputed tea exporter and 100 per cent export oriented concern it is registered with all tea auction centres of Kolkata, Siliguri, Guwahati, Kochin, Coimbatore and Coonoor under the control of Tea Board of India and purchases tea directly from the auctioneers for export as per requirement of various foreign buyers and accordingly has obtained a merchant exporter certificate issued by the Ministry of Commerce and Industry, Government of India, with validity up to March 31, 2004. In course of such business the applicant uses to send tea samples to different foreign buyers and after obtaining their approvals he uses to sign agreement and/or contracts and/or pro forma invoices and/or purchase orders containing the price, quantity and quality of the tea along with shipment dates and/or months. After getting confirmation of orders from the foreign buyers of different countries the applicant starts to purchase tea from the tea auctioneers and/or from the tea gardens and/or from the tea traders and uses to transport the purchased goods to his warehouse situated at 10, Hoboken Shed, Kolkata: 700 088 and thereafter uses to raise export invoice and packing list and to keep the tea ready for inspection by export inspection agency of Kolkata and also by phytosanitary officers, Ministry of Agriculture, Government of India and after collecting certificates from the said authorities he uses to load the said tea in a container for transportation to Kolkata or Haldia Port for checking and issuing customs clearance certificates and after obtaining that and the shipping bills, the container uses to load on ship for export to different countries and after sailing of the ship and obtaining the port bill of lading he uses to submit the original bill of lading, export invoices, packing list, shipping bills, certificate of export inspection agency, etc., to his banker for realization of the payment against the export invoice, and when the banker of the applicant used to issue certificate of export known as "banker's realization certificate for export" (BRC) the petitioner used to apply for export incentive before the Director -General of Foreign Trade, Ministry of Commerce, Government of India along with original banker's realization certificate for export.
(2.) IN course of his business as aforesaid the petitioner procured several orders from the foreign buyers of different countries under one agreement for export of bulk quantity of different graded and branded tea during the years 2007 -08 and 2008 -09 and all the orders, were duly executed through its convenient branch offices located nearby the reputed tea gardens of India for purchasing tea directly from the gardens and tea auction centres. On September 22, 2010 the applicant accordingly applied for issuing 336 numbers of declarations in form 12A in respect of purchases of tea made for prior to export and 26 numbers of declarations in form 12A against purchase of packing materials but the application was rejected by respondent No. 1 on September 22, 2010. Being aggrieved and dissatisfied with the said order, the applicant preferred revision before respondent No. 1 who has also rejected the revision petition by the impugned order dated February 2, 2011, confirming the impugned order dated September 22, 2010 passed by respondent No. 1 and hence the present application for setting aside the orders and for direction to issue the declaration certificates. It is contended in the application and submitted by Mr. Dey, learned advocate for the petitioner, that as per the provision of section 5(3) of the Central Sales Tax Act, 1956, the applicant purchased the exported tea after the agreement and/or orders for or in relation to such export but the respondents have failed to appreciate the entire documents produced but relying upon a judgment in Mica Trading Corporation of India Ltd. v. State of Andhra Pradesh reported in : [1996] 100 STC 142 (AP), the respondents have passed the impugned orders though the material facts of the case is not similar to the fact of the case of export in the instant case and hence the orders are liable to be set aside, being totally illegal, harrassive and without jurisdiction.
(3.) IN reply it is submitted by Mr. S.S. Imam, the learned State Representative, that on scrutiny of the documents filed by the applicant in support of his case it was revealed that some quantity of the exported tea had been taken from stock and some from the other branches of the concerned garden and hence the export cannot be treated as one under the provision of section 5(3) of the Central Sales Tax Act, 1956 and for that the application was rejected by respondent No. 1. It is further submitted by Mr. Imam that on revision the claim of the applicant was carefully scrutinized by the revisional authority, i.e., respondent No. 2 and by an elaborate order dated February 2, 2011, it has observed that the petitioner filed all the related documents in Xerox copies, save and except purchase bills and on demand the dealer failed to produce original documents on the plea that those were lying at the foreign buyer's custody and at the bank. It is further noted that even the original BRCs were not produced on the ground that those were valuable documents and are lying at their head office in Delhi and it is observed that in absence of original documents the claim of export was not fully satisfied. It further appears from the order that the dealer furnished list of total 21 purchase orders of foreign buyers and requirement of form 12A against such purchases prior to export and relating to the year 2008 -09 and on examination the authority found huge differences between the purchases and export against a particular order in a particular period for example goods purchased against Order No. 13 dated March 4, 2008 of the foreign buyers in the month of April 2008 from different dealers were 5,074 kgs whereas goods exported against that particular order in April 2008 was 4, 1580 kgs. On being asked the explanation, as to the difference between the purchases and export, was that excess goods were taken from the stock held earlier by the dealer. It is observed by the revisional authority that the dealer failed to explain satisfactorily as to why there should be the stock when the dealer claimed to be a 100 per cent exporter/export oriented concern. It is further observed in the order that such type of differences occurred in almost all the cases where materials purchased and exported against a particular order. The revisional authority cited another example in the order where the quantity and brand of the materials purchased and exported by the dealer in a particular period did not satisfy the quantity and brand of the goods as required by the foreign buyers. According to the order of the authority, as per Order No. 13 dated March 4, 2008 the foreign buyer required pure Black Indian orthodox and CTC tea and again as per orders No. JCAL/704/07 -08 dated November 28, 2007; JCAL/706/07 -08 dated November 28, 2007, etc., the foreign buyers of Iran required the tea of standard No. 007, standard No. 110, etc., but the dealer purchased the tea like Highland's Grade tea, GOF, Rahimpur Grade FOF Sesa (B) FOF blended tea, Grade FBOPI and exported the tea of different standard. On being inquired the dealer submitted that sometimes the tea is sold as the same form as received from the garden or purchased in auction and sometime charred out blending on its warehouse at 10, Hobkenshed Hide Road, Kolkata 88 and some blended tea always remain in godown as a stock for export. It is further observed by the authority that the dealer does not maintain day -to -day of its stock, neither any register regarding blending activities was produced. It is opined there that there is difference between the quality of tea purchased and exported to foreign buyers and according to the authority neither the goods are purchased against a particular order as per requirement of the foreign buyer nor the quality of tea purchased and exported are found same and for the above reasons the authority found that the dealer should not be allowed to avail of the benefit of form 12A and for that the order of rejection passed by respondent No. 1 was confirmed.;

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