S. C. AGRAWAL, J. - (1.) THIS application was moved under section 15 (2) (b) of the Rajasthan Sales Tax Act, 1954, hereinafter referred to as "the Rajasthan Sales Tax Act" for directing the Board of Revenue for Rajasthan to state the case and to refer this Court the question of law arising out of its order dated 30th March, 1978. During the pendency of this application the Rajasthan Sales Tax (Amendment) Act, 1984 (Act No. 20 of 1984) was enacted whereby the provisions of section 15 of the Rajasthan Sales Tax Act were substituted and instead of reference to this Court a provision was made for revision by the High Court in special cases. By section 13 (10) of the Rajasthan Sales Tax (Amendment) Act, 1984, it was provided that every application under clause (b) of sub-section (2) of section 15 of the Rajasthan Sales Tax Act pending before the High Court on the date of coming into force of the said amendment shall be deemed to be an application for revision under section 15 of the Rajasthan Sales Tax Act and disposed of accordingly. In view of the aforesaid provision this application is being disposed of as a revision petition.
(2.) M/s. Beecham Ores and Minerals (non-petitioner No. 1) (hereinafter referred to as the assessee) is a partnership firm having its head office at Bombay and a branch office at Udaipur in Rajasthan. It is registered as a dealer under the Rajasthan Sales Tax Act as well as under the Central Sales Tax Act, 1956 (hereinafter referred to as the Central Sales Tax Act ). The assessee obtained an export order for supply of soap stone lumps from Japan and in order to supply soap stone lumps to the foreign buyers, the assessee purchased soap stone lumps from various registered dealers of Udaipur in Rajasthan. The said purchases made by the assessee during the period 1st January, 1969 to 31st December, 1969 (assessment year 1970-71) were to the tune of Rs. 4,47,235. 25. The said purchases by the assessee were made from the local dealers under agreements which provided for the supply of soap stone lumps by the local suppliers f. o. r. loading station and the prices were fixed exclusive of sales tax and the local taxes. The goods were consigned by the suppliers in their name to Kandla Port Railway Station and the bills were made in the name of the assessee. The local suppliers collected 85 per cent of the bill amount from the banks on presentation of the railway receipts and the bills and the remaining 15 per cent was to be paid on receipt of the bills of lading from the shipping company through the shipping agent M/s. D. Abraham & Sons Private Ltd. , on receipt of the railway receipts and the bills. The assessee used to issue transfer memos to the head office showing the quantity and price of soap stone including the actual expenses and the head office used to issue final bills to Japan party and receive the payment through letter of credit against bills of lading and invoices. While making the purchase of soap stone lumps from the local dealers, the assessee issued declaration in form S. T. 17 showing that the goods were meant for export out of the territory of India and it did not pay purchase tax and sales tax payable in respect of the said goods. Before the assessing authority the assessee raised the plea that the sales by the local dealers and purchases by the assessee of soap stone lumps were sales and purchases made in the course of export and, therefore, no tax on the sale or purchase could be levied as per section 5 of the Central Sales Tax Act read with article 286 (1) (b) of the Constitution of India and the sales by the assessee through its head office were also in the course of export and were not liable to tax. The assessee also raised a plea that the goods purchased by the assessee were taxable at the first point and declarations in form S. T. 17 were wrongly issued by the assessee and that the goods being taxable at first point the burden of paying tax was on the suppliers and the liability to pay tax could not be shifted on the assessee. The Commercial Taxes Officer, Circle A, Udaipur, hereinafter referred to as the Commercial Taxes Officer, by his order dated 30th July, 1975, held that the purchases made by the assessee from the local suppliers were not made in the course of export trade since the goods were purchased much before they entered into the export stream and the exports were not a direct result of the purchase. According to the Commercial Taxes Officer, these purchases were only for export and not in the course of export and, therefore, the goods were liable to purchase tax under section 5a of the Rajasthan Sales Tax Act. The Commercial Taxes Officer also held that after the transfer of the goods by the assessee to its held office the goods entered into the export stream and were sold to the purchaser in Japan and those sales were not liable to any sales tax. The Commercial Taxes Officer was further of the view that from the documents (purchase bills and invoices) produced by the assessee, it was clear that the goods purchased by it have not suffered tax at any other point and even if the question of issuance of declarations in form S. T. 17 was altogether ignored, these purchases form part of the taxable turnover as defined under section 2 (s) of the Rajasthan Sales Tax Act, and were liable to purchase tax under section 5a of the Rajasthan Sales Tax Act. The Commercial Taxes Officer, therefore, levied purchase tax at the rate of 7 per cent under section 5a of the Rajasthan Sales Tax Act on the turnover of Rs. 4,47,235. 25. The appeal filed by the assessee against the said assessment order passed by the Commercial Taxes Officer was dismissed by the Deputy Commissioner (Appeals), Commercial Taxes, Ajmer, by order dated 28th January, 1976. On revision the Board of Revenue for Rajasthan, hereinafter referred to as the Board of Revenue, by its order dated 30th March, 1978, set aside the orders of the Commercial Taxes Officer and the Deputy Commissioner (Appeals) and directed that no tax would be leviable on the transactions under consideration for the reason that the purchases made by the assessee from the local dealers were made directly in connection with export trade and were exempt from tax under section 5 of the Central Sales Tax Act and section 5a of the Rajasthan Sales Tax Act would not be attracted. The Commercial Taxes Officer moved an application before the Board of Revenue under section 15 of the Rajasthan Sales Tax Act for referring to this Court the question of law arising out of its order dated 30th March, 1978, but the said application was rejected by the Board of Revenue by his order dated 14th September, 1978. Thereupon the Commercial Taxes Officer moved this petition under section 15 (2) (b) of the Rajasthan Sales Tax Act for directing the Board of Revenue to state the case and to refer the following question of law arising out of its order dated 30th March, 1978 : " Whether, under the facts and circumstances of the case, the Board of Revenue was justified in holding that no purchase tax is leviable on Rs. 4,47,235. 25 being a sale in the course of export although there was no privity of contract between the sellers within the State and the foreign buyers ?" As pointed out earlier during the pendency of this application the Rajasthan Sales Tax Act was amended by the Rajasthan Sales Tax (Amendment) Act, 1984, whereby section 15 of the Rajasthan Sales Tax Act was substituted and instead of reference to this Court, provision has been made for revision by High Court in special cases. In section 13 of the Rajasthan Sales Tax (Amendment) Act, 1984, transitory provisions have been made and in sub-section (10) of section 13 it has been provided that every application under clause (b) of sub-section (2) of section 15 of the Rajasthan Sales Tax Act as it existed immediately before the date of coming into force of the Amendment Act, 1984, pending before the High Court on the said date shall be deemed to be an application for revision under section 15 of the Rajasthan Sales Tax Act as substituted and shall be disposed of accordingly. In view of the said provision contained in section 13 (10) of the Amendment Act of 1984 this application has to be treated as an application for revision under section 15 of the Rajasthan Sales Tax Act and has to be disposed of as a revision application. Sub-section (3) of section 15 of the Rajasthan Sales Tax Act as substituted by the Amendment Act of 1984 provides that the application for revision shall precisely state the question of law involved in the case and it shall be competent for the High Court to formulate the question of law or to allow any other question of law to be raised. Sub-section (4) of section 15 as substituted provides that the High Court shall after hearing the parties to the revision decide the question of law involved therein and shall thereupon pass such orders as are necessary to dispose of the case. In the present case the applicant in this application has stated the question of law involved in this case and we will proceed to deal with the said question of law, namely, whether, under the facts and circumstances of the case, the Board of Revenue was justified in holding that no purchase tax is leviable on Rs. 4,47,235. 25 being a sale in the course of export although there was no privity of contract between the sellers within the State and the foreign buyers.
(3.) WE have heard Shri K. C. Bhandari, the learned counsel for the applicant in support of the revision and Shri L. M. Lodha, learned counsel for the assessee. Under article 286 of the Constitution a restriction has been imposed on the buyers on the sale or purchase of the goods and in sub-clause (b) of clause (1) of article 286 it is prescribed that no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of the goods where such sale or purchase takes place in the course of the import of the goods into, or export of the goods out of, the territory of India. Prior to the enactment of the Central Sales Tax Act there was no definition of the phrase "in the course of import or in the course of export. " In State of Travancore-Cochin v. Bombay Company Ltd. [1952] 3 STC 434 (SC) the Supreme Court considered four meanings of the expression "in the course of export", and equated sales in the course of export to sales which occasioned the export. In State of Travancore-Cochin v. Shanmuga Vilas Cashew-nut Factory [1953] 4 STC 205 (SC) the Supreme Court again emphasised that sales and purchases which by themselves occasion export of the goods come within the exemption of article 286 (1) (b ). Thereafter, Parliament enacted the Central Sales Tax Act. In sub-section (1) of section 5 of the Central Sales Tax Act, it has been prescribed that a sale or purchase of goods shall be deemed to take place in the course of export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title after the goods have crossed the customs frontiers of India. In other words Parliament has adopted the meaning given to the phrase "in the course of export" by the Supreme Court in the cases referred to above. In Ben Gorm Nilgiri Plantations Company v. Sales Tax Officer [1964] 15 STC 753 (SC) the Supreme Court has observed : " A sale in the course of export predicates a connection between the sale and export, the two activities being so integrated that the connection between the two cannot be voluntarily interrupted, without a breach of the contract or the compulsion arising from the nature of the transaction. In this sense to constitute a sale in the course of export it may be said that there must be an intention on the part of both the buyer and the seller to export, there must be an obligation to export, and there must be an actual export. The obligation may arise by reason of statute, contract between the parties, or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export. A transaction of sale which is a preliminary to export of the commodity sold may be regarded as a sale for export, but is not necessarily to be regarded as one in the course of export, unless the sale occasions export. And to occasion export there must exist such a bond between the contract of sale and the actual exportation, that each link in inextricably connected with the one immediately preceding it. Without such a bond, a transaction of sale cannot be called a sale in the course of export of goods out of the territory of India. . . . . . . . . . In general where the sale is effected by the seller, and he is not connected with the export which actually takes place, it is a sale for export. Where the export is the result of sale, the export being inextricably linked up with the sale so that the bond cannot be dissociated without a breach of the obligation arising by statute, contract or mutual understanding between the parties arising from the nature of the transaction, the sale is in the course of export. " In that case the appellants before the Supreme Court were manufacturers of tea who had applied for and obtained from the Tea Board allotment of export quota rights on payment of the necessary licence fee and thereafter the chests of tea were sold by public auction along with the export quota rights. At the auction sale the tea chests with the export quota rights were purchased by the agents or intermediaries of foreign buyers and the said agents or intermediaries of foreign buyers then obtained licence from the Central Government for export of the tea chests under the export quota rights vested in them under the purchases made at the auction sale and the chests of tea were then actually exported out of the territory of India. The Supreme Court held that the transaction of sale of tea chests by the appellants did not occasion the export of the goods even though the appellants knew that the buyers in offering the bids for chests of tea and export quotas were acting on behalf of foreign principals and that the buyers intended to export the goods. According to the Supreme Court there was between the sale and the export no such bond as would justify the inference that the sale and export formed parts of a single transaction or that the sale and export were integrally connected and that the appellants were not concerned with the actual exportation of the goods and the sales were intended to be complete without the export, and as such it could not be said that the sales occasioned the export. The Supreme Court held that the said sales were for export and not in the course of export and were, therefore, not exempt. In Coffee Board v. Joint Commercial Tax Officer [1970] 25 STC 528 (SC) the Supreme Court reiterated the law laid down in Ben Gorm Nilgiri Plantations Company's case [1964] 15 STC 753 (SC) and laid down some tests which can be applied for determining whether a particular sale was a sale in the course of export. The Supreme Court has laid down : " The phrase 'sale in the course of export' comprises in itself three essentials : (i) that there must be a sale, (ii) that goods must actually be exported, and (iii) the sale must be a part and parcel of the export. Therefore, either the sale must take place when the goods are already in the process of being exported which is established by their having already crossed the customs frontiers, or the sale must occasion the export. The word 'occasion' is used as a verb and means 'to cause' or 'to be the immediate cause of'. Read in this way the sale which is to be regarded as exempt is a sale which cause the export to take place or is the immediate cause of the export. The export results from the sale and is bound up with it. The word 'course' in the expression 'in the course of' means 'progress or process of', or shortly 'during'. The phrase expanded with this meaning reads 'in the progress or process of export' or 'during export'. Therefore, the export from India to, a foreign destination must be established and the sale must be a link in the same export for which the sale is held. To establish export a person exporting and a person importing are necessary elements and the course of export is between them. Introduction of a third party dealing independently with the seller on the one hand and with the importer on the other breaks the link between the two, for them there are two sales one to the intermediary and the other to the importer. The first sale is not in the course of export for the export begins from the intermediary and ends with the importer. Therefore, the tests are that there must be a single sale which itself causes the export or is in the progress or process of export. There is no room for two or more sales in the course of export. The only sale which can be said to cause the export is the sale which itself results in the movement of the goods from the exporter to the importer. " ;