IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH G.S.T.R. No. 8 of 2004 DATE OF DECISION: March 19, 2009 M/s Liberty Footwear Company …Applicant Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE H.S. BHALLA Present: Mr. R.P. Sawhny, Senior Advocate, with Mr. Saurav Khurana, Advocate, for the applicant. Mr. Sanjeev Kaushik, Addl. AG, Haryana, for the respondent. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. At the instance of the dealer-assessee, the Haryana Tax Tribunal, Chandigarh (for brevity, ‘the Tribunal’) has referred the instant reference under Section 42(1) of the Haryana General Sales Tax Act, 1973 (for brevity, ‘the Act’) read with Section 9(2) of the Central Sales Tax Act, 1956 (for brevity, ‘the CST Act’). The dealer-assessee has filed an application before the Tribunal for forwarding various questions of law for G.S.T.R. No. 8 of 2004 opinion of this Court, arising from the order dated 5.2.1988, passed by the Tribunal in S.T.A. No. 140 of 1985-86, in respect of assessment year 1974-75. However, the Tribunal after adjudicating the application has referred the following question of law for opinion of this Court, vide its order dated 16.3.2004:- “Whether on the facts and circumstances of the case the applicant is an “exporter” within the meaning of section 5 of the Central Sales Tax Act, 1956 read with Rule 29(5) [29(v)?] of the Punjab General Sales Tax Rules, 1949?” It is conceded position that the matter is no longer res integra. A similar controversy between the parties in respect of the assessment year 1971-72 came up for consideration before a Division Bench of this Court and vide judgment dated 18.1.2005 (State of Haryana v. Liberty Footwear Company, [2006] 145 STC 532) after examining Section 5 of the CST Act and Rule 29(v) of the Punjab General Sales Tax Rules, 1949 (as were applicable to Haryana) (for brevity, ‘the Rules’), the Division Bench in para 13 of the judgment has observed as under:- “13. ……We have also taken into consideration the specific language employed by rule 29(v) of the Rules wherein it has been specifically noticed that the export of goods out of the territory of India could have been in one transaction or by a series of transactions. Therefore, when the assessee-firm entered into a contract with the State Trading Corporation and the aforesaid contract duly provided for f.o.b. destination supply of goods and consequently shipping on behalf of the 2 G.S.T.R. No. 8 of 2004 assessee-firm, then for al intends and purposes, it was the assessee-firm who had exported the said goods. As a matter of fact, the goods sold by the assessee were actually proved to be exported outside the territory of India. Thus, we do not find any fault with the order of the learned Tribunal dated November 21, 1977.” From a bare perusal of the aforementioned observation made by the Division Bench of this Court, no doubt is left that the question of law raised in the instant reference is liable to be answered in favour of the dealer-assessee and against the revenue, inasmuch as, from the reading of the statement of the case prepared by the Tribunal it is evident that it was the consistent stand of the dealer-assessee that it has undertook the work of manufacturing leather footwear according to the specifications and shipping the manufactured leather footwear to the foreign buyers. The dealer-assessee has further claimed that he was an agent or nominee or associate of the State Trading Corporation. Therefore, there was no relationship of buyer and seller between it and the State Trading Corporation. The exports made through the State Trading Corporation were exempted under Section 5(1) of the CST Act. The dealer-assessee has, thus, claimed that it must be considered as ‘direct exports’. The Assessing Authority has, however, rejected the claim vide order dated 30.3.1983 and treated the transactions as ‘inter-state sales’. The appeals preferred by the dealer-assessee were rejected upto the Tribunal affirming the view taken by the Assessing Authority. 3 G.S.T.R. No. 8 of 2004 We are in respectful agreement with the Division Bench judgment of this Court passed in the case of the parties itself, dated 18.1.2005 (supra) in respect of the assessment year 1971-72 and following the same principle, the question of law raised in the instant reference is answered in favour of the dealer-assessee and against the revenue. (M.M. KUMAR) JUDGE (H.S. BHALLA) March 19, 2009 JUDGE Pkapoor 4