M.N.Roy, J. - (1.)The petitioner, Voltas Ltd., is an existing company within the meaning of the Companies Act, 1956 and is a manufacturer of various electrical and engineering goods and has also stated to be carrying on the business of importing into India, amongst others, electrical, mining and engineering goods or equipment on behalf of various customers, including the West Bengal State Electricity Board, Damodar Valley Corporation and Ors.s. The rule, with the corresponding interim order of injunction, restraining the respondents concerned, from enforcing or taking any steps pursuant to the concerned orders of assessment, the particulars whereof would be mentioned hereinafter, was obtained by them on 10th January, 1977. Even though the rule was made ready as regards service on 20th March, 1979 and appearances as indicated hereinbefore, were entered, no affidavit-in-opposition was filed and the learned Advocates appearing for the respondents concerned, advanced their arguments or made their submissions, on production of the records.
(2.)It was stated that if the purchasers could obtain the necessary import licences in their own name and execute letters of authority in favour of the petitioner only, for enabling the importation of goods, they used to undertake or take the task of importation of such goods as specified. In fact, it has been stated that in the instant case, the actual user's licence was obtained by the consumers and they also obtained the necessary letter of authority from the Chief Controller of Imports and Exports, New Delhi, authorising the petitioner to import on behalf of such actual users, whose particulars would be mentioned hereinafter, such goods as required. It has also been stated that such actual users opened the necessary letters of credit and made remittance of foreign exchange against the licences and to the extent of the values as specified in the letters of authority, which were issued under the provisions of the Import Trade Control Hand Book. A copy of such actual user's licence, as issued to actual user or customer, viz., Damodar Valley Corporation and the corresponding letter of authority, as issued by the office of the Chief Controller of Imports and Exports, have been disclosed and it has been claimed that such letter of authority was issued subject to the following conditions amongst others :
(a) Where an irrevocable letter of credit is opened by the holder of the licence to finance the import of any goods covered thereby, then the authorised dealer in foreign exchange, through whom the credit is opened, shall be deemed to be a joint-holder of this licence to the extent of the goods covered by the credit. (b) All items imported under it shall be used only in the licence-holder's factory at the address shown in the application against which the licence is issued and no portion thereof will be utilised by the licensee for a unit/purpose other than the one for which the licence in question is issued, or will be sold or permitted to be utilised by any other party. The licensee shall maintain proper account of consumption and utilisation of the goods imported against the licence. (c) Payments authorised to be made against it shall not cover any commission, discount, or like rebates allowed by foreign suppliers/manufacturers to the concessionaires, i.e., the importers in India. The records as indicated above and produced by the petitioner were specimen copies and the assessment orders which are impeached are in (1) Case No. 63(A) of 1976-76 under Section 11(1) of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the 1941 Act), (2) Case No. 91(A)/72-73 under the 1941 Act, (3) Case No. 97 of 1972-73 under Section 9(3) of the West Bengal Sales Tax Act, 1954 (hereinafter referred to as the 1954 Act) and (4) Case No. 70 of 72-73 under Section 9(3) of the 1954 Act. It should be noted that even though, in this proceeding, the petitioners have challenged the initial lack of jurisdiction to initiation and continuation of the concerned assessment proceedings, they have filed regular appeals, being (1) Appeal No. A-1060/76-77 against Case No. 63(A) of 1975-76, (2) Appeal No. A-829/75-76 against Case No. 91(A)/72-73, (3) Appeal No. 130/76-77 against case No. 97 of 1972-73 and (4) Appeal No. A-937/76-77 against Case No. 70/72-73 and those appeals where comprehensive prayers have been made to set aside the relevant and concerned assessments, are still pending.

(3.)In these proceedings, the petitioners have stated that they entered into contracts with the relevant purchasers/customers for importation of the goods as ordered to them by the actual users against their licences and the letters of authority as obtained by those actual users and the contracts in question, besides giving the specifications and relevant particulars of the concerned goods, also mentioned f. o. b. price of the imported materials and such price as mentioned, was for delivery f. o. b. Calcutta and were firm contracts, subject of course to the variation in the rate of exchange and customs duty. The petitioners have mentioned the stipulation with regard to payment as under : 95 per cent payment against each consignment will be paid by our consignee officers against R/R through bank. Balance 5 per cent payment will also be made by our said consignee officers pertaining to their portion within 30 days from the date of receipt of your 5 per cent bill supported by S.R.V. which will be granted by our officer not below the rank of an Assistant Engineer/Assistant Stores Officer, after due verification of the materials at site. All bills and papers, in duplicate, should be submitted to our consignee officers along with R/R through bank.