DEPUTY COMMISSIONER Vs. SEA ROSE MARINE PVT. LIMITED

JUDGEMENT

(1.) The State is the revision petitioner. The assessee is the respondent. The assessment years concerned are 1983 -84 and 1984 -85. The respondent - assessee is engaged, inter alia, in the export of marine products. The assessments for the two years under the Kerala General Sales Tax Act, 1963 (for short "the Act") were completed on July 30, 1994 and August 31, 1994 respectively. In the said assessments the claim for exemption on the purchase turnover of shrimps amounting to Rs. 64,70,403 and Rs. 2,05,08,630 respectively under section 5(3) of the Central Sales Tax Act, 1956 was denied on the ground that the assessee's sale to the export house was the penultimate sale which occasioned the export. Being aggrieved, the assessee filed separate appeals before the Additional Deputy Commissioner (Appeals), Agricultural Income -tax and Sales Tax, Ernakulam. The Deputy Commissioner by separate orders dated January 30, 1995 and March 10, 1995 respectively set aside the two assessment orders and remanded the matter to the assessing authority for verifying whether the purchases of prawns took place after and was for the purpose of complying with the agreement or order for or in relation to such export and as to whether the assessee had satisfied all the conditions of section 5(3) of the Act. Not being satisfied with the order of the first appellate authority the assessee took up the matter in second appeal before the Tribunal. The Tribunal disposed of both the appeals by a common order dated November 21, 1995 allowing the claim made by the assessee under section 5(3) of the CST Act. These two revisions at the instance of the State are against the said common order of the Tribunal.

(2.) THE only question that arises for consideration in these two revisions is regarding the correctness of the order of the Tribunal granting the claim of the assessee for exemption made under section 5(3) of the Central Sales Tax Act for the aforesaid two years.

(3.) THE learned Government Pleader appearing for the State submitted that the assessee is not entitled to exemption from payment of sales tax made under section 5(3) of the CST Act for the reason that the assessee had not satisfied all the conditions stipulated in the said sub -section. The Government Pleader submitted that since the assessee is not the exporter of the goods purchased by it locally and since the assessee did not have any foreign contract for export of shrimps the assessee is not entitled to exemption under section 5(3). The Government Pleader submitted that the export house is the exporter and the purchase of shrimps effected by the assessee acquired the quality of last purchase by the sale effected by it to the export house. The Government Pleader submitted that the Tribunal had in fact considered the question only under section 5(1) of the CST Act and that there was no consideration as to whether the purchase turnover of shrimps effected by the assessee is entitled to exemption under section 5(3) of the Act.