B.K.Ray, J. - (1.)The State of Orissa and the assessee applied to the Sales Tax Tribunal under Section 24 (1) of the Orissa Sales Tax Act of 1947 (hereinafter referred to as the 'Act') to state cases and refer certains questions for opinion of the Court. After hearing both sides the Tribunal has stated these cases and referred the following questions for opinion of the Court:-
"(1) Whether on the facts and in the circumstances of the case, the Tribunal is correct in holding that there has been no contravention of the declaration given under Rules 27 (2) of the Orissa Sales Tax Rules thus attracting the Proviso to Section 5 (2) (A) (a) (ii) of the Orissa Sales Tax Act? (2) Whether in the facts and circumstances of the case, the learned Tribunal having held that there was no contravention of Section 5 (2) (A) (a) (ii) of the Act acted within its jurisdiction in remanding the appeal ? (3) Whether in the facts and circumstances of the case, the sale by the pettioner-Company to the Japanese Buyer comes within the ambit and scope of Article 286 (1) (b) of the Constitution of India read with Section 5 of the Central Sales Tax Act ?"
References made at the instance of the assessee have been registered as S. J. Cs. 85 to 89 of 1971 while those made at the instance of the Revenue have been registered as S. J. Cs. 90 to 94 of 1971. These references came up for hearing before a Division Bench consisting of two of us and by order dated 6-21976 these were asked to be placed before a larger Bench to examine the correctness of the several contentions raised and that is how these references are now being disposed of by us.
(2.)Assessee, the Minerals and Metals Trading Corporation of India Limited is a public sector Company of the Union Government and is a registered dealer under the Act within Cuttack III Circle. During the years 1966-67 and 1967-68 and the quarters ending June, September and December, 1968, assessee purchased certain mineral ores from mine owners who are registered dealers under the Act upon furnishing declaration in terms of Rule 27 (2) of the Orissa Sales Tax Rules (hereinafter referred to as the 'Rules') undertaking to resale the same within the State, of Orissa. These purchases were on the basis of contracts entered into by the assessee with the mine owners. Assessee carried the goods to Paradeep Port within the State and sold the same to Japanese Buyers with whom the assessee had pre-existing contracts. When assessments were taken up, assessee claimed that in terms of its undertaking and declarations furnished under Rule 27 (2), assessee had resold the goods to Japanese buyers at Paradeep within the State and, therefore, there was no violation of the undertaking and the application of the Proviso to Section 5 (2) (A) (a) (ii) of the Act was not attracted. It is further contended that the sale of goods by the assessee to Japanese buyers being in course of export came within the purview of exemption provided under Article 286 (1) (b) of the Constitution and, therefore, the same was not exigible to sales tax even if there be a local sale at Paradeep. A part of the ores purchased by the assessee from the mine owners on the basis of declarations were actually resold to M/s. Hindustan Steel Limited. In respect of those no dispute arose and we have not been called upon to deal with the same.
(3.)In respect of the materials sold to the foreign buyers, the Sales Tax Officer found that there had been a violation of the declarations inasmuch as the assessee violated the undertaking. He, therefore, applied the Proviso and raised demand of tax for the entire period.