:1: bgp bgp bgp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION SALES SALES SALES TAX APPLICATION NO.3 OF 2007 TAX APPLICATION NO.3 OF 2007 TAX APPLICATION NO.3 OF 2007 IN IN IN REFERENCE REFERENCE REFERENCE APPLICATION NO.166 & 167 OF 2006 APPLICATION NO.166 & 167 OF 2006 APPLICATION NO.166 & 167 OF 2006 WITH WITH WITH SALES SALES SALES TAX APPLICATION NO.18 OF 2007 TAX APPLICATION NO.18 OF 2007 TAX APPLICATION NO.18 OF 2007 IN IN IN REFERENCE REFERENCE REFERENCE APPLICATION NO 166 & 167 OF 2006 APPLICATION NO 166 & 167 OF 2006 APPLICATION NO 166 & 167 OF 2006 The Commissioner of Sales Tax, Maharashtra State, 8th Floor, Vikrikar Bhavan, Mazgaon, Mumbai - 400 010. ..Applicant Vs. M/s.Tata Iron & Steel Co.Ltd. New India Assurance Building, 37, M.G.Road, Fort, Mumbai - 400 001. ..Respondent Mr.Vinay Sonpal, A.G.P.for the Applicant. Mr.G.S.Jetly, Senior Advocate with Mr.P.S.Jetly with Mr.Atul Thakkar for the Respondent. CORAM CORAM CORAM :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & A.V.NIRGUDE, A.V.NIRGUDE, A.V.NIRGUDE, JJ. JJ. JJ. DATE DATE DATE : 13TH JUNE, 2008 : 13TH JUNE, 2008 : 13TH JUNE, 2008 P.C. P.C. P.C. 1. Heard the learned Counsel for the Applicant and the learned Senior Counsel for the Respondent. The above two Reference Applications pertaining to A.Y.1994-95 have been filed by the Commissioner of Sales Tax (for brevity, Commissioner) under Section 61 of the Bombay Sales Tax Act (for brevity, Bombay Act) read with Section 9(2) of the Central Sales Tax Act (for brevity, Central Act). :2: 2. During the period relevant to A.Y.1994-95, the Respondent was a registered dealer under the Bombay Act and the Central Act and had sold its customers certain items of iron and steel which were covered under Section 5 of the Central Act and consequently were not liable to tax under Section 75 of the Bombay Act. 3. By way of above Sales Tax Applications, the Applicant wants this Court to seek the statements of facts from the Maharashtra Sales Tax Tribunal with regard to following two questions of law arising in the above Sales Tax Applications. a. Whether on the facts and in the circumstances of the case, the Tribunal is justified in law in allowing the claim of Rs.60,82,73,339/- in respect of various transactions of local sale and Rs.23,27,45,141/- in respect of interstate sale covered by bulk imports by ships and which were un-ascertained stage till the clearance from customs as sales in the course of imports by transfer of document of title to the goods within the meaning of Section 5(2) of the Central Sales tax Act,1956 read with Section 75 of the Bombay Sales Tax Act,1959 and hence, not liable to tax under the B.S.T.Act,1959 or C.S.T.Act,1956 ? b. Whether on the facts and circumstances of the case, the Tribunal is justified in holding that provisions of Sale of Goods Act,1930 particularly Section 18 of the Sale of Goods Act,1930 is not applicable to the transaction in dispute ? 4. Even in the earlier Sales Tax Application Nos.10 of 2006 and 11 of 2006, the aforesaid two identical questions were raised except the amount which were different, otherwise they were identical. :3: 5. Mr.Jetly, the learned Senior Counsel appearing on behalf of the Respondent Assessee pointed out that as identical questions of law were raised in Reference Application Nos.3 of 2002 and 4 of 2002 and the Tribunal had refused to refer the same to this Court. Aggrieved thereby, the Applicant Commissioner of Sales Tax had filed Sales Tax Application Nos.10 of 2006 and 11 of 2006 and this Court by a detailed judgment dated 1st December,2006 in paragraph Nos.13 and 14, came to the following conclusion: 13. Once the Tribunal held that in the present case the sales were covered under the first limb of Section 5(2) of the Central Act and, consequently exempt from payment of tax, the question as to whether the sales were exempt under the second limb of Section 5(2) of the Central Act became academic. In this view of the matter, the refusal on the part of the Tribunal to refer Question Nos.1 and 2 relating to the applicability of the second limb of Section 5(2) of the Central Act as well as the provisions of the Sale of Goods Act to the transactions in question cannot be faulted. Similarly, Question No.4 being consequential, the said question has not been referred. 14. However, we expressly make it clear that we have declined to refer questions No.1 and 2 because in the facts of the present case the said question are academic in nature and it will be open to the department to agitate those questions in any appropriate case before the appropriate forum. 6. Aggrieved by the aforesaid order dated 1st December,2006, the Applicant Commissioner of Sales Tax had approached the Hon’ble Supreme Court by filing a Special Leave Petition, which came to be dismissed on 26th November,2007. :4: 7. Mr.Sonpal, appearing on behalf of the Applicant states, that by an earlier order dated 1st December,2006, this Court had declined to refer question Nos.1 and 2 mentioning therein, that they were academic in nature, and in an appropriate case the Department could agitate these questions before an appropriate forum. 8. When we queried from Mr.Sonpal, whether or not, that except the amount involved in the above, questions of law and all other facts and circumstances are identical? Mr.Sonpal is unable to controvert the same. Under the aforesaid facts and circumstances of the case, and in view of the judgment of our Court dated 1st December,2006 in Sales Tax Application No.10 of 2006 and 11 of 2006 and also in view of the fact that the Hon’ble Supreme Court had also declined to interfere with the same, we are also inclined to hold that the decision of the Maharashtra Sales Tax Tribunal in the present case is based on the same facts and circumstnaces and therefore, the orders passed by the Tribunal rejecting the Reference Applications filed by the Commissioner cannot be faulted. Hence, we dismiss both the aforesaid Sales Tax Applications with no order as to costs. (A.V.NIRGUDE,J.) (A.V.NIRGUDE,J.) (A.V.NIRGUDE,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.)