IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. STC No.3 of 2010 (O&M) Date of decision: 6.1.2011 Excise & Taxation Commissioner, Haryana. -----Applicant. Vs. Sita Singh Engineers & Sons. -----Respondent. CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Vinod S. Bhardwaj, Addl.A.G., Haryana for the applicant. --- ADARSH KUMAR GOEL, J. 1. This petition has been filed under Section 9(2) of the Central Sales Tax Act, 1956 read with Section 42(2) of the Haryana General Sales Tax Act, 1973 seeking direction to the Haryana Tax Tribunal to refer for opinion of this Court following questions of law:- i) Whether in the facts and circumstances of the case, the sale of bus bodies by the respondent to the exporter of passenger buses qualifies for exemption under section 5(3) of the Central Sales Tax Act, 1956? ii) Whether on true and correct interpretation of the provision of section 5(3) of the Central Sales Tax Act, STC No.3 of 2010 1956, the supply of bus bodies by the respondent to the exporter of passenger buses could be legally held to be “for the purpose of compliance with the agreement or order for or in relation to export” of passenger buses? iii) Whether the Tribunal was justified in ignoring the Apex Court judgments in cases reported as 108 STC 258 in case of KAK Anwar & Company versus State of Tamil Nadu as well as 63 STC 239 and 100 STC 571 that was quoted and relied upon by the Revisional Authority in his order dated 25.02.2002? iv) Whether in the facts and circumstances of the case the Tribunal was legally justified in deciding the appeal exclusively relying upon the decision of Karnataka High Court reported as 123 STC 473 cited before it on behalf of the appeal and absolutely without considering the decision reported as 123 STC 508 (T.N.T.S.T) cited before it on the behalf of the State? v) Whether the Tribunal has failed to follow the judgment of the Hon’ble Punjab & Haryana High Court in case of Hari Om Ind. Versus State of Haryana reported as 16 PHT 209 wherein it has been held by the Hon’ble High Court that the Sales Tax Tribunal, Haryana, can take different view on merits in another year of the same assessee? vi) Whether the Tribunal was justified in brushing aside the reliance on judgments reported as 108 STC 258 and 119 STC 369 without assigning any reason?” 2. The assessee executed the work of fabrication for the exporter M/s DCM Daewoo Motors (India) Ltd., Ghaziabad, U.P. 2 STC No.3 of 2010 and claimed exemption in respect of the said turnover under Section 5(3) of the Central Sales Tax Act, which was allowed by the Assessing Authority. However, the revisional authority exercised suo motu jurisdiction to interfere with the order of assessment on the ground that penultimate transaction preceding the export could not be held to be in the course of export. On appeal, the Tribunal set aside the view taken by the revisional authority as under:- “We have considered the submissions made by both the parties and have also seen the facts on record. We have also gone through the judgments relied upon by rival parties carefully. After perusal of the record, we do not agree with the contention of the state representative that the Assessing Authority had allowed exemption with respect to sale of bus bodies without obtaining the information required under col.5 of form H. The Assessing Authority in its order dated 07.04.1998 has clearly stated that the assessee had adduced documentary evidence i.e. H form in support of his claim which are placed on the file after verification duly supported with purpose orders. This is a clear finding of fact recorded by the assessing Authority which is based on evidence. We do not find any reason to differ with the finding of the Assessing Authority. No weight can be attached to this submission raised by the state representative. As regards the question “whether the transaction in question is covered by section 5(3) of the Central Sales Tax Act. Or not.”? The case is fully covered by the judgment of Hon’ble Karnataka High Court passed 3 STC No.3 of 2010 in the case of M/s AZad Body Builders (P) Ltd.Vs. State of Karnataka reported as (2001) 123 STC 473 (Karnataka High Court) where it has clearly been held that: “In present matter it is not even the case of implies contract but of the specific contract which has been entered into by the exporter with the foreign buyer to export the ‘bus’ having the “chasis’ and ‘body” of definite specification and thus all the condition of section 5(3) of the Central Sales Tax Act have been fulfilled. It is not in dispute that at the time when the orders were placed to the petitioner by the exporter, the exporter had the pending orders with him and that the purchase from the petitioner was for the purpose of complying with the agreement or order for or in relation to such export. The “agreement” or “order” has reference to those goods which are actually exported out of the country. The words “in relation to such export” extend the scope of the exemption to the extent that even if there is no agreement or order but they are in relation to such export, the exemption can still be claimed. This would cover not only the packing material, but all other such sales which are made to the exporter for which by implication it could be considered that there was an agreement or order in respect thereof. According to our considered view, so long as there is sale of both the items to institute them as complete item, the benefit can not be denied.” 4 STC No.3 of 2010 This view has also been taken by the Sales Tax Tribunal, Haryana in the case of the appellant itself for the assessment year 1997-98 in STA No.779 of 2001- 2002 and also by the Haryana Tax Tribunal in STA No.508 of 2002-2003 in case of M/s Paras Mechanical Industry, Faridabad. Following the ratio of these judgments, we feel that the present case be also decided accordingly and consequently the present appeal is allowed. The order of the Revisional Authority is quashed and that of the Assessing Authority is restored.” 3. We have heard learned counsel for the petitioner. 4. Learned counsel for the petitioner is unable to dispute that against earlier order of the Tribunal, which has been followed in the present case, the State did not take any remedy. He is also unable to dispute the applicability of the said judgment. His only contention is that the goods covered by the transaction penultimate to export should be of the same goods which are exported. There is no merit in the submission. In the present case, it has been specifically held by the Assessing Authority as well as by the Tribunal that the assessee had produced the relevant information in prescribed form in support of its claim. Once transaction between the assessee and the exporter was integrated to the export, Section 5(3) was rightly held to be attracted following the view taken by Karnataka High Court. The view taken by the Karnataka High Court, relied upon by the 5 STC No.3 of 2010 Tribunal stands affirmed by the Hon’ble Supreme Court in State of Karnataka v. Azad Coach Builders (P) Ltd. and others v. (2010) 9 SCC 524. 5. In view of above, we are unable to hold that any question of law arises which may require adjudication by this Court. The petition is dismissed. (ADARSH KUMAR GOEL) JUDGE January 06, 2011 ( AJAY KUMAR MITTAL ) ashwani JUDGE 6