Decided on December 24,2009

Deputy Commissioner Of Commercial Tax, Corporate Division And Ors. Respondents


R.K.DATTA CHAUDHURI - (1.) IN this application under Section 8 of the West Bengal Taxation Tax Act, 1987 the Petitioner agitated rejection of its sale during the period four quarter ending December 31, 2004 by way of export to Bhutan and taking the same as intra -State sale in the assessment for the aforesaid period despite production of exemption certificate granted by the Department of Revenue and Customs of the Bhutan Government, copies of the consignment notes, sale invoices and proof of the receipts of sale proceeds before Respondent No. 1, Deputy Commissioner of Commercial Taxes. Admittedly, the goods were not meant for the use of the King of Bhutan. In the impugned assessment order, on examination of the documents produced by the dealer, it was observed that the orders for supply of the goods were more or less the same.
(2.) No consideration value, no time -limit for the despatch were mentioned, each order cancelled the previous order for the balance, there are no reference to the order in the bill and invoice numbers, the Petitioner did not produce the certificate issued by the Indian Customs with explanation that there was no such system. Citing the decisions of the honourable Supreme Court in the cases State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd., (1958) 9 STC 353 and 377 (SC), K. G. Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes, Madras reported in : (1966) 17 STC 473 (SC), Tata Iron & Steel Co. Ltd., Bombay v. S. R. Sarkar reported in, (1960) 11 STC 655 and 667 (SC), Ben Gorm Nilgiri Plantation Co., Coonoor v. Sales Tax Officer reported in : (1964) 15 STC 753 (SC) rejected the claim of export sale and treated the same as intra -State sale. For non -production of invoices he assessed tax to his best judgment. The appellate and revisional authorities did not interfere with the observations made in the assessment order as regards the dealer's claim on export sale to Bhutan. On being aggrieved with the orders of the authorities below on the Petitioner's claim of export sale to Bhutan, the Petitioner filed this application. It is its case that the exemption certificates issued by the Revenue and Customs Department of the Bhutan Government were the sufficient evidence of the arrival of the goods in Bhutan though Rule 37 in terms of which those exemption certificates were issued had no relevance in the transaction. In respect of export to Bhutan the established practice was that the Bhutan authorities would check every consignment and pass it for import into Bhutan by making endorsement on the back of the invoice and to issue certificates certifying that the goods reached Bhutan. The Indian customs authorities did not issue any certificate that the goods had crossed the territory of India. The absence of certificate of the Indian Customs authorities was of no consequence because the customs authorities of the destination country checked and certified that the goods reached Bhutan. The goods were sold on standard price inclusive of freight. The Petitioner usually despatched the goods immediately upon receipt of the payment therefor. As such there was never any occasion for negotiation between the Petitioner and his customers as regards the price of the goods and payment and thereof. Accordingly, in the indents/orders the buyers did not specify the rate or value, time -limit for despatch but merely mentioned the product description and quantity. The stock phrase was used by the customer as a measure of abundant caution so that any unsupplied goods of any previous indent were not supplied along with the fresh indented goods. It was of no consequence that the invoices did not contain any reference of the indents/orders of the customers. The Respondents appearing through the learned State Representative contested the application by filing a written submission and parawise comments signed by Respondent No. 1 Debomoy Roy Chaudhuri, Senior Joint Commissioner of Commercial Taxes, Corporate Division. He reiterated what are written in the assessment order and added that the Petitioner did not disclose the fact of the standard price before any of the authorities below. He submitted that he was not bound by the practice of acceptance of anything which was not permissible by law. He further submitted that in the matter of transaction between two countries, it was necessary that the transaction was preceded by an order so that import or export could be identified.
(3.) IN the application before us the only issue called upon for our consideration is as to whether the observation of the assessing authority affirmed by the appellate and revisional authority that the dealer failed to prove that the sales of the goods were really in course of export to the foreign country Bhutan is correct. Basing some observations made in the judgments of the Supreme Court in State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd., (1958) 9 STC 353 and 377, Tata Iron & Steel Co., Ltd. v. S. R. Sarkar, (1960) 11 STC 655, Ben Gorm Nilgiri Plantation Co. v. Sales Tax Officer, (1964) 15 STC 753 and K. G. Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes, (1966) 17 STC 473 the assessing authority did not accept the sale in course of export for the reasons below: - (i) the indents placed by the Bhutan customers did not contain the rate, price and period of despatch ; (ii) though there was mention of cancellation of previous and balance order, no such previous order was produced by the Petitioner. The invoices raised by the Petitioner did not contain any reference of the customs order ; (iii) there was no certificate of the Indian customs authorities regarding export.;

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