- (1.) This appeal is by the petitioner against the judgment and order passed by D. Basu, J. dated March 7, 1963 in Civil Rule No. 4413 of 1959, whereby the Rule was discharged.
(2.) Petitioner claimed to be an exporter to scrap iron carrying on business under the name and style of Messrs. Jhagru Shaw Dukhraj Shaw, Howrah. He entered into a contract for export of a scrap iron to Genoa and Iron and Metal Traders Ltd. Bombay (hereinafter to as the Bombay Company) acted as Commission agent. The petitioner obtained transferable export licence and dispatched 900 tons and 300 tons of scrap iron in two consignments to Genoa and Messrs. Richard Nathan Corporation of New York (hereinafter referred to as the Corporation), was the purchaser and its steamer agent was M/s. Mahboob Kasim & Co. Ltd. the petitioner loaded the goods at its costs to the ship of the said shippers at Calcutta and bill of lading was issued in the name of the Corporation. The petitioner sent the invoice etc. and received payment for the same. Though the provisions of Bengal Finance (Sales Tax) Act, 1941 were not attracted, the Commercial Tax Officer, Howrah, assessed sales tax on the said transactions by his order dated September 27, 1956. The Officer overlooked that under Section 5(2) (a) (v) of the Act the sales which have not taken place in West Bengal or sales in course of the export of goods out of the territory of India are exempted and the same was to be deducted from the taxable turnover. The petitioner claimed exemption under this head for a sum of about Rupees 2.24 lakhs on account of transactions referred to above. On appeal, the Assistant Commissioner on April 30, 1957 affirmed the order. The Additional Commissioner also affirmed the order in revision on August 20, 1957. The petitioner thereafter moved the Board of Revenue and the same order was affirmed on April 13, 1959 by the Additional Member of the Board. The petitioner made an application before the Board for making a reference under section 21 of the Act to this Court which was, however, rejected as being barred by limitation. In the meantime a certificate for a total demand of Rs.11,031/- was issued on October 30, 1959 by the Certificate Officer, Howrah in respect of the said transactions. The petitioner thereupon moved this Court in Constitutional Writ Jurisdiction in or about December 22, 1959 praying for a Writ in the nature of Mandamus directing a reference to this Court under Section 21 and also for a Writ in the nature of Certiorari quashing all the orders mentioned above, on this application the concerned Rule was issued. The Rule was opposed by the respondent No.5, the Commercial Tax Officer, Howrah, by filing an affidavit-in-opposition affirmed on April 4, 1960 and it was stated therein that there were two perfected sales. One sale took place at Calcutta and there was a resale whereupon the commodity was sent outside India. The first sale was between the petitioner as seller and the Bombay Company who was the actual buyer and not the commission agent as alleged. This company subsequently sold the exported goods outside India on the export licence of the petitioner. The petitioner leaded the goods in the ship under the instruction from the Bombay Company and not of the foreign buyer in whose names the bills of lading were made also under instructions of the Bombay Company. The payments were also received by the petitioner from the Bombay Company. Accordingly, the provisions of the said Act was directly attracted and the exemption claimed was not admissible.
(3.) In the affidavit-in-reply the petitioner, while reiterating the allegations made in the petition, stated that the Bombay Company worked as commission agent of the foreign buyers and the terms were either cash or by letters of credit at the opinion of the buyers against shipping documents. The sale became complete only after the goods were loaded in the ship for dispatch outside India. Before such delivery the goods remained in the possession of the petitioner as owner and not as custodian.;