IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.02.2010 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA W.P.No.15660 of 2000 M/s Ziptex Fasteners Pvt. Ltd., 80, Aspiran Garden 2nd Street, Chennai 600 010 .. Petitioner -Vs- 1. The Commercial Tax Officer Ponneri Assessment Circle Ponneri 2. The Appellate Assistant Commissioner (CT) V Kancheepuram 3. The Joint Commissioner III (SMR) of Commercial Taxes Commissioner of Commercial Taxes Chepauk, Chennai-5 .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, to call for the records of the third respondent in his impugned proceedings in S.M.R.No.176/97 Ref.No.M1/T2/22544/95 and quash the order dated 24.5.2000 on the ground that the same is ultra vires the express provisions of Sec.5(3) of the CST Act, 1956 and contrary to the ratio of the decision of this Hon'ble Court reported in 113 STC 384 and 110 STC 151 and further direct the first respondent to give effect to order of the Appellate Authority in A.P.No.250 dated 21.1.1994 in accordance with law. For Petitioner :: Mr.V.Sundareswaran for Mr.K.Venkatasubramaniam For Respondents :: Mr.Haja Naziruddin Special Government Pleader (T) ORDER (Order of the Court was delivered by D.MURUGESAN, J.) The petitioner is a dealer supplying poly-zips to its customers having export agreements for being used in the plastic bags. The petitioner reported a total and taxable turnover of https://hcservices.ecourts.gov.in/hcservices/ Rs.6,96,341.82 and Rs.4,54,783.45 respectively under the Central Sales Tax Act, 1956 for the assessment year 1990-91. However, the assessing officer determined the total and taxable turnover of Rs.5,48,087.00 and excluded a sum of Rs.1,58,185.00. For the rest of the total turnover, wherever Form-H was filed, the petitioner was given exemption under Section 5(3) of the Central Sales Tax Act, 1956 (for short, "the Act") and wherever Form-H was not filed or was defective, such exemption was not granted. This order was taken before the appellate authority, who passed certain orders modifying the order of the assessing officer. 2. It appears that the Joint Commissioner of Commercial Taxes, in exercise of the power under Section 34 of the Act, had suo motu revised the order of the assessing officer on the ground that the exclusion of a sum of Rs.1,58,185.00 by the assessing officer is prejudicial to the interest of the revenue and consequently confirmed the proposal for levy of tax for that amount as well. Questioning the above, the present writ petition is filed. 3. We have heard Mr.V.Sundareswaran, learned counsel for the petitioner and Mr.Haja Naziruddin, learned Special Government Pleader (Taxes) for the respondents. 4. For entitlement to the benefit of tax exemption under Section 5(3) of the Act, the petitioner has filed Form-H declarations with further details as to the export obligation of its customers and also the proof that the products sold to its customers were in fact exported. Even in the pre-assessment notice dated 31.1.92, the assessing officer has observed that the assessee had filed valid Form-H declarations for the amount of Rs.1,58,185.00 and the sales have been effected to exporters against pre-existing export orders and that the goods were in fact exported by the buyers. On a show cause notice being issued prior to the order passed by the Joint Commissioner, the petitioner- assessee has filed its objections, wherein it is specifically stated that the poly-zips were sold by the assessee to the actual exporter who used the same as such and exported the goods and the said exporter furnished Form-H declarations and export documents such as Airway Bill copies along with a declaration confirming that the zips purchased have been used in the final product which has been exported. It was also stated that the actual exporter had procured the zips exclusively for export purposes and the said zips have been procured to suit the particular colour of the goods proposed to be exported. It was also stated that specific coloured zips have been used as such without any change in their identity by the actual exporter. These factors have not at all been considered by the Joint Commissioner while passing the revisional order, who proceeded to hold that the petitioner is liable for payment of tax solely on the ground that what was exported was plastic bags, cushion covers and not zips. 5. In matters like this, the consideration for the application of Section 5(3) of the Act is as to whether Form-H declaration is filed and the proof for the use of the product by the exporter in https://hcservices.ecourts.gov.in/hcservices/ the product which was actually exported is shown. From the pre- assessment notice as well as the grounds taken by the petitioner, it appears to us that the zips which have been supplied by the petitioner to its customers are only as per the export orders and those zips were used in the bags for which the exporter had received specific orders and there was no change in the identity of the zips, except the zips being stitched to the bags for packing materials. In the circumstances, the provisions of Section 5(3) of the Act will be available to the petitioner. Even assuming that the assessing officer has committed an error in excluding the above said amount from the total turnover reported by the assessee, it makes no difference as far as the levy of tax. For the said reason, we are inclined to entertain this petition. Accordingly, the impugned order of the Joint Commissioner is set aside and the writ petition is allowed. In the result the order of the appellate authority would come into force. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ss To 1. The Commercial Tax Officer Ponneri Assessment Circle Ponneri 2. The Appellate Assistant Commissioner (CT) V Kancheepuram 3. The Joint Commissioner III (SMR) of Commercial Taxes Commissioner of Commercial Taxes Chepauk, Chennai-5 +1cc to Mr.K.Venkatasubramaniam, Advocate Sr 11609 +1cc to Special Govt. Pleader Sr 11349 PKB(CO) km/26.2. W.P.No.15660 of 2000 https://hcservices.ecourts.gov.in/hcservices/