DAMODAR DASS VISHWANATH Vs. COMMISSIONER SALES TAX U P LUCKNOW

JUDGEMENT

(1.) THIS reference under section 11(1) of the U.P. Sales Tax Act (hereinafter referred to as the Act) has been made by the Additional Judge (Revisions) Sales Tax, U.P., who has submitted a statement of the case and invited our opinion on the following questions of law :

(2.) THE dealer in the present case is M/s. Damodar Dass Vishwanath of Farrukhabad (hereinafter referred to as the assessee). They deal in brass-wares and scrap and carry on their business in the city of Farrukhabad. During the years 1956-57 and 1958-59 they claimed to have exported some goods to Nepal and claimed exemption for those sales on the ground that the sales have been made in the course of exports. The goods were sold to dealers who belong to the State of Nepal. The delivery of the goods was made at Nepalganj which is the railway terminus for Nepal. The Sales Tax Officer included the turnover in respect of the goods sold to Nepal dealers in the assessment order. The assessee's appeal for the year 1956-57 was dismissed by the Judge (Appeals) Sales Tax, but that for the year 1958-59 was allowed by him, the Judge (Appeals) Sales Tax, by remanding the case for reassessment after giving an opportunity to the assessee to furnish a certificate from the customs barriers. The Commissioner of Sales Tax filed a revision application against the order of the Judge (Appeals) Sales Tax made in connection with the assessment year 1958-59 and the assessee filed one in respect of the assessment order made for the year 1956-57. The Judge (Revisions) dismissed the revision application filed by the assessee but allowed the one filed by the Commissioner of Sales Tax.

(3.) THE statement of the case clearly mentions that the assessee had sold the goods to dealers who belong to the State of Nepal and that the delivery was given at Nepalganj which is within India. It has been further stated that the Nepal dealer was free to take the goods inside Nepal State or to sell them in Nepalganj which, as stated earlier, is a part of India. On the basis of the facts stated, especially the fact that the Nepal dealer had complete freedom to sell goods at Nepalganj, it cannot be said that the assessee had made sales to the Nepal dealers in the course of exports. Article 286(1)(b) which was introduced in the Constitution by the Sixth Amendment reads thus :