THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.29152 of 2010 July 20, 2011 Between: M/s.LMJ International Limited, Gajuwaka, represented by its Accounts Executive, Mr.Prasant Kumar Jena ... Petitioner And The Commercial Tax Officer, Gajuwaka Circle, Visakhapatnam And another …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.29152 of 2010 ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) The petitioner assails the endorsement dated 18.10.2010 of the first respondent. By the said endorsement, the request of the petitioner for issue of 500 Nos. of ‘H’ Form was rejected on the ground that the petitioner is not eligible to be issued ‘H’ Forms. The brief facts, to the extent necessary for disposal of this matter, are as follows. The petitioner is a company with its head office at Kolkata and a branch office at Visakhapatnam. They are in the business of export of rice to foreign countries. They are also registered as a VAT dealer on the rolls of the first respondent under the Andhra Pradesh Value Added Tax Act, 2005 (the VAT Act) and the Central Sales Tax Act, 1956 (the CST Act). During the years 2006-07, 2007-08 and 2008-09, statedly, the petitioner effected exports and in that connection purchased rice from registered local dealers. According to the petitioner rice was exported and, taking the same into consideration, the petitioner’s assessment under the CST Act for the years 2006-07 and 2007-08 was completed duly allowing exemption under Section 5(1) of the CST Act. When local dealers demanded that ‘H’ Forms be issued to them, the petitioner applied to the first respondent on 12.10.2010 requesting for supply of ‘H’ Forms as required under Rule 9 of the Central Sales Tax (Andhra Pradesh) Rules, 1957 (the A.P. Rules). It is the petitioner’s case that the first respondent cannot refuse to issue ‘H’ Forms on any ground, much less on the ground that the question, whether the purchases made by the exporter were deemed export or not for the purpose of exemption under the CST Act, shall have to be gone into at the time of assessment of the local dealers who had supplied rice to exporter like the petitioner. At the stage of admission, the first respondent has filed counter affidavit. Justifying the impugned endorsement rejecting the supply of ‘H’ Forms, the first respondent would submit that the Regional Vigilance & Enforcement Officer, Rajahmundry had addressed the Deputy Commissioner on 30.10.2009 to the effect that the petitioner had purchased rice from local millers prior to the export order received from foreign buyers. As such the petitioner does not qualify for exemption under Section 5(3) of the CST Act; based on the same the Deputy Commissioner had initiated revision of assessment of the petitioner for the year 2007-08 under the CST Act vide notice dated 21.8.2010. The petitioner has filed reply affidavit denying the contents of the vigilance report as well as the averments and allegations in the counter affidavit. Along with the reply affidavit, the petitioner has filed W.P.M.P.No.13775 of 2011 seeking leave to file additional evidence/documents as proof that, in respect of the purchases made for the three assessment years mentioned supra, the petitioner had received export orders prior to purchase of rice from local dealers. The Counsel for the petitioner and the Special Counsel for the Commercial Taxes reiterate their position during their oral submissions. Our attention has also been invited to Rule 9 of the A.P. Rules, and also the decision of the Division Bench of this Court in Unitech Ltd., v CTO, Gajuwaka[1]. Rule 9 of the A.P. Rules reads as under. Rule 9: Every registered dealer shall apply to the notified authority and obtain from him adequate number of forms of declaration for use by him at the time of receipt or purchase of goods as mentioned in (sub-section (1) of Section 6-A or sub- section (4) of Section 8) of the Act, on payment of the cost into the Treasury calculated at the rate of Rs.14.00 per book of 25 forms and Rs.44.00 per book of 100 forms) and production of the receipt or challan in proof of such payment along with the application. Under Rule 2(d) of the A.P. Rules, a notified authority is defined to mean the authority specified by the Central Government under Section 7(1) of the CST Act. A ‘registered dealer’ is defined in Section 2(f) of the CST Act to mean a dealer who is registered as a dealer under Section 7 of the CST Act. Any such dealer shall have to apply to the notified authority, and obtain adequate number of forms of declaration for use by him at the time of purchase of goods mentioned in Section 6-A(1) or Section 8(4) of the CST Act on payment of the prescribed costs. At the stage of applying for forms, or supplying forms, the only issue would be whether such forms are necessary for the dealer to discharge the burden of proof required under Section 5(4) of the CST Act which would logically come up at a subsequent stage when assessment is undertaken. A perusal of Form ‘H’ would also support the view that the proof of export of the goods, or sale of goods for the purpose of exports (which is also deemed export), would be a relevant issue at the time when the assessing officer undertakes assessment. At the stage of issue of ‘H’ Forms under Rule 9 of the A.P. Rules, any requirement that a registered dealer should produce such proof is neither warranted nor does a plain reading of the provision requires the dealer to produce such proof. Therefore, as a general practice, the notified authority (in this case the Commercial Tax Officer) cannot reject the request for issue of ‘H’ Forms only on the ground that an exporter has not produced adequate proof of having received an export order prior to the export of goods purchased from local dealers. This, however, does not mean that, at the time of assessment, the assessing officer cannot reject the ‘H’ Forms, and deny the benefit under Section 5(3) read with 5(4) of the CST Act. Mere issue of ‘H’ Forms does not mean anything, much less doing it entail the benefit under Section 5(3) read with 5(4) of the CST Act being extended to the assessee. Be it the exporter, or the dealer who is the penultimate exporter, cannot claim any benefit under Section 5(3) of the CST Act merely on the ground that, at the request of the former, ‘H’ Forms were supplied by the notified authority without demur. In this case, however, we are convinced that the first respondent, having regard to the allegation made in the report dated 30.10.2009 of the second respondent, could not have ignored the report of the second respondent to the effect that the petitioner had purchased rice from rice millers prior to the export agreements. We leave open the question, to be decided in an appropriate case, whether a notified authority could validly decline issue of ‘H’ Forms in the peculiar circumstances of a given case. Along with the reply affidavit, the petitioner has placed before this Court various export orders during the three assessment years which, according to the petitioner, were placed by the foreign buyer prior to the petitioner’s purchase of rice from local millers. This is a matter to be gone into by the assessing officer at the time of assessment, not at the stage of issuing ‘H’ Forms. Subject to above observations, we dispose of the writ petition directing the first respondent to issue ‘H’ Forms to the petitioner within a period of ten (10) days from the date of receipt of a copy of this order. There shall be no order as to costs. ________________ (V.V.S. RAO, J) ______________________________ (RAMESH RANGANATHAN, J) July 20, 2011 NOTE: Dispatch order copy by 25.7.2011. (By order) YS [1] (1991) 83 STC 207 (AP)