Case: State of Orissa Vs. Minerals &amp; Metals Trading Corporation of India Limited

are two distinct events. A sale in the course of the export of the goods cannot be a sale within the State of Orissa. The assessee entered into contracts with the Japanese buyers for export sale of the mineral ores. An export sale has an entirely different legal concept. In the export sale, the sale and the export are so intertwined and intermixed that both begin and end together. The various clauses of the contract entered into by the assessee and the Japanese buyers are wholly irrelevant and are of no consequence. Even if on the construction of the contract of export sale the sale part of it is completed within the State it would still not be considered as legally complete because till the time the sale and the export both are completed none can be taken to be complete. It is, therefore, inherent in the concept of export sale that both the sale and the export are completed when the goods are appropriated by the foreign buyer. 12. Patanjali Sastri, C.J., speaking for this Court in State of Travancore-Cochin and Ors. v. The Bombay Co. Ltd. [1952]1SCR1112 , examining the scope of the export sale under Article 286(1)(b) of the Constitution of India observed as under: We are clearly of opinion that the sales here in question, which occasioned the export in each case, fall within the scope of the exemption under Article 286(1)(b). Such sales must of necessity he put through by transporting the goods by rail or ship or both out of the territory of India, that is to say, by employing the machinery of export. A sale by export thus involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea. Such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export form parts of a single transaction. Of these two integrated activities, which together constitute an export sale whichever first occurs can well be regarded as taking place in the course of the other. Assuming without deciding that the property in the goods in the present cases passed to the foreign buyers and the sales were thus completed within the State before the goods commenced their journey as found by the Sales Tax Authorities, the sales must, nevertheless, be regarded as having taken place in the course of the export and are, therefore, exempt under Article 286(1)(b). 13. M. Hidayatullah, C.J. speaking for this Court in Coffee Board, Bangalore v. Joint Commercial Tax Officer, Madras and Anr. [1970]3SCR147 , interpreted the phrase sale in the course of export in the following words: The phrase sale in the course of export comprises in itself three essential: (i) that there must be a sale (ii) that goods must actually be exported and (iii) the sale must be a part and parcel of the export.... The export results from the sale and is bound up with it. The word course in the expression in the course of means progress of process of, or shortly during. The phrase expanded with this meaning reads in the progress or process export or during export. Therefore the export from India to a foreign destination must be established and the sale must be a link in the same export for which the sale is held. 14. In Md. Serajuddin and Ors. v. State of Orissa AIR1975SC1564 , this Court examined the earlier judgments on the interpretation of Article 286(1)(b) of the Constitution of India. It would be useful to refer the following observations of the Bench in the said case: The expression in the course implies not only a period of time during which the movement is in progress but postulates a connected relation. Sale in the course of export out of the territory of India means sale taking place not only during the activities directed to be end of exportation of the goods out of the country but also as part of or connected with such activities. 15. It is, therefore, clear that the export sale envisaged under Article 286(1)(b) of the Constitution of India continue to be in the process of completion till the goods reach the destination. 16. The argument of the learned Counsel for the respondent that the assessee by the deposit of the mineral, ores at Paradeep Port made a sale to the foreign buyer at the port is fallacious and overlooks the fact that the purchase had been made by the assessee from the registered dealers, to satisfy his pre-existing contract with the Japanese buyer and the goods were deposited or believed at Paradeep Port for transportation, put of the country, to the destination of the foreign buyer, to satisfy the requirements of the pre-existing contract, the delivery of the goods at the Paradeep Port was thus in discharge of the obligation under the contract on the part of the exporter-assessed and formed but a single transaction. It was not a second sale to the foreign buyer in the State of Orissa. The effort to confuse the delivery of goods at Paradeep Port for transportation to the destination of the foreign buyer with a sale at Paradeep Port is a futile attempt to wriggle out of his mis-declaration. In the declaration filed by the assessee, he. not only misstated that the goods were meant for re-sale within the State of Orissa but also concealed the fact that there was a pre-existing contract between the assessee and the Japanese buyers to satisfy which the mineral ores were being purchase, for export, from the registered dealers. The declaration made by the assessee concealed more than what is revealed. The assessee, therefore, made a declaration which was palpably incorrect. The assessee thus contravened the provisions of Section 5(2)(A)(a)(ii) of the Act and rendered itself liable under the proviso to the said Section,

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. The undisputed scheme of the Act is that a dealer becomes liable to pay tax at the time of purchase but being a registered dealer under the Act a facility is given to him and the liability to pay the tax is deferred to a later stage, when he resells the goods. To ensure that the sale does not escape tax altogether a declaration is taken from the dealer to the effect that the goods are meant for resale within the State. In other words, the Act has adopted a single point tax. Under the scheme, the taxable event is postponed until a registered dealer sells the goods to an unregistered dealer, a consumer or in breach of the undertaking diverts the goods for other purposes. The proviso to Section 5(2) of the Act operates when the purchasing dealer violates his undertaking and he becomes liable to pay the tax which he had avoided on the basis of the declaration.7. It is not disputed that the assessee purchased mineral ores from the mine owners - who were registered dealers under the Act - upon furnishing declaration as provided in Rule 27(2) of the Rules. The assessee had not paid sales tax on those purchase. The declaration makes it obligatory for the assessee to resell the mineral ores, so purchased, within the State of Orissa.8. The learned Counsel for the appellant has not challenged before us the finding of the High Court that the sale by the assessee to the Japanese buyers is covered by the embargo under Article 286(1)(b) of the Constitution of India read with Section 5 of the Central. Sales Tax Act and, therefore, is not exigible to sales tax under the Act.15. It is, therefore, clear that the export sale envisaged under Article 286(1)(b) of the Constitution of India continue to be in the process of completion till the goods reach the destination.16. The argument of the learned Counsel for the respondent that the assessee by the deposit of the mineral, ores at Paradeep Port made a sale to the foreign buyer at the port is fallacious and overlooks the fact that the purchase had been made by the assessee from the registered dealers, to satisfy his pre-existing contract with the Japanese buyer and the goods were deposited or believed at Paradeep Port for transportation, put of the country, to the destination of the foreign buyer, to satisfy the requirements of the pre-existing contract, the delivery of the goods at the Paradeep Port was thus in discharge of the obligation under the contract on the part of the exporter-assessed and formed but a single transaction. It was not a second sale to the foreign buyer in the State of Orissa. The effort to confuse the delivery of goods at Paradeep Port for transportation to the destination of the foreign buyer with a sale at Paradeep Port is a futile attempt to wriggle out of his mis-declaration. In the declaration filed by the assessee, he. not only misstated that the goods were meant for re-sale within the State of Orissa but also concealed the fact that there was a pre-existing contract between the assessee and the Japanese buyers to satisfy which the mineral ores were being purchase, for export, from the registered dealers. The declaration made by the assessee concealed more than what is revealed. The assessee, therefore, made a declaration which was palpably incorrect. The assessee thus contravened the provisions of Section 5(2)(A)(a)(ii) of the Act and rendered itself liable under the proviso to the said Section,The State of Orissa has not come up in appeal against the judgment of the High Court allowing the writ petitions of the petitioners falling under category Nos. (1) and (2) before the High Court. We are not expressing any opinion in respect of the part of the judgment of the High Court which is not under appeal before us.28. We have been taken through the judgment of the High Court wherein all the points raised by the appellants-petitioners have been dealt with by giving detailed reasons in respect of each of the points. We see no ground to interfere with the judgment of the High Court. We agree with the reasoning and the conclusions reached therein.29. We have today pronounced judgments in civil Appeals Nos. 1811-15(NT) of 1977 titled State of Orissa v. Minerals and Metals Trading Corporation of India Limited and also in Civil Appeal Nos.343-347 of 1987 .titled Industrial Minerals & Metals and Anr. v. The Sales Tax Officer and Anr. Even on the force of the reasoning and conclusions in these judgments, this appeal has to be dismissed.34. We are of the view that the High Court fell into patent error in holding that the sales in dispute were made by the assessee within the State of Orissa. It is not disputed that the said sales were in the course of inter-state trade. If the goods were to retain within the State of Orissa the sales could not be in the course of Inter-State trade. To make a sale in the course of inter-State trade, it is necessary that the contract must envisage the completion of the sale as well as the movement of the goods to the other State in the course of inter-State trade. The very fact that the sales in dispute were the sales in the course of inter-State trade, they could not be the sales within the state in terms of Section 2(g) of the Act. The Act provides for a single point levy and the tax is payable at one point or the other. When the assessee purchased the goods free of tax by giving an undertaking that the goods would be resold within the State of Orissa and subsequently violates the undertaking by selling the goods in the course of inter-State trade and commerce, the proviso to Section 5(2)(A)(a)(ii) of the Act is directly attracted and the assessee is liable to pay tax. A sale cannot be inside Orissa and at the same time in the course of inter-State trade and commerce. In order that a sale or purchase might be inter-State, it is essential that there must be transport of goods from one State to another under the contract of sale or purchase. In Bengal Immunity Company Limited v. State of Bihar [1955]2SCR603 , occur the following observations which are apposite:A sale could be said to be in the course of inter- State trade only if two conditions concur (1) A sale of goods, and (2) A transport of those goods from one State to another under the contract of sale. Unless both these conditions are satisfied, there can be no sale in the course of inter-Statet is the admitted case of the assessee that the sales in question were the sales in the course of inter-State trade and if that is the position then the question of the same sales being the sales within the State did not arise.35. We have, today, pronounced judgment in Civil Appeals Nos. 343-347 of 1987 titled Industrial Minerals & Metals and Anr. v. The Sales Tax Officer and Anr. wherein we have held that a sale in the course of the export of goods out of the territory of India cannot be a sale at the same time within the State of Orissa. On the principles, a sale in the course of inter-State trade and commerce cannot be a sale within the State of Orissa.36. There is, thus, patent violation of the undertaking given by the assessee37. In Endurpuri Narasimhan & Son v. State of Orissa and Ors. (1961) 12 STC 282 , certain sales to the petitioner therein were not included in the taxable turnover of the seller by reason of the registration certificate which the petitioner had obtained on a declaration that the goods were to be resold in Orissa. In violation of the declaration the petitioner sold the goods to dealers outside the State and he was taxed under Section 5(2)(a)(ii) of the Act. This Court held that the imposition of the tax was not on the sales by the petitioner to person outside the State but on the purchases by him inside the State for which he gave an undertaking and violated the same by not selling the goods within the State of Orissa.38. Even otherwise, the High Court was not justified in holding that the onus for proving that the goods at the time of the contract were not within the State of Orissa was on the sales tax authority. The assessee on purchase of the goods became liable to pay the tax but he did not do so because it was a sale from a registered dealer to a registered dealer. The assessee saved the tax and postponed the event by giving an undertaking that he would sell the goods within the State. True to the undertaking the onus to show that the goods were actually sold within the State of Orissa was on the assessee. In any case, a contract of sale by which the goods are sold and are to be transported from one State to another cannot be made a lever for the argument that though the sale is in the course of inter-state trade and commerce but nevertheless it is a sale within the State of Orissa under Section 2(g) of the Act.43. We have today delivered judgment in Civil Appeals Nos. 2947-50 (NT) of 1977 wherein the High Court judgment in State of Orissa v. Johrimal Gajanand (1976) 37 STC 157  has been reversed.The High Court rejected the contentions of the appellants and upheld the validity of the amended Section 5(2)(A)(a)(ii) of the OST Act on the following reasoning:Under the scheme of the Act, the taxable event is postponed until the registered dealer sells the goods to an unregistered dealer or a consumer, or in breach of the undertaking given. Law is well settled that the competent legislature can enact law after removing the infirmities or deficiencies as pointed out by the Court. All that is to be seen in such cases is that the amended law is within the competence of the legislature. Powers of the State Legislature under Entry 54 of List II of the VII Schedule to the Constitution are plenary. The impugned amended Act is an attempt by the State Legislature to ensure the single point levy by nullifying the effect of the two decisions of this Court. The question is whether such action is within the competence of the State Legislature and is in conformity with Article 286 of the Constitution of India.It is the contention of the petitioners that the goods were meant for resale in Orissa and in fact were resold inside Orissa. The State Legislature has power to impose tax on the sale or purchase of goods other than news papers. This is subject to the provisions of Entry No. 92 A of List I. The petitioners would have paid the tax while purchasing the goods from a registered dealer. But while purchasing the goods, they have avoided the tax by giving a declaration that the goods purchased were meant for the purpose of resale in Orissa and such resale should be subject to levy tax under the O.S.T. Act. But subsequently, in violation of the declaration they have sold the same in course of inter-state trade or commerce or export and avoided payment of tax. Normally the tax should have been paid at the first point and the petitioners could not have avoided payment of such tax and would have paid the tax but for the declaration given by them. They have sold the goods in violation of the declaration given by them. As already held, in case of declared goods, they are entitled to reimbursement by virtue of Section 15 of the CST Act_ and Section 14-B of the O.S.T. Act and Rule 42-A of the O.S.T. Rules. From Section 15 of the CST Act_, it is abundantly clear that it places restrictions and conditions upon the local law. Its intention is that declared goods should suffer tax at only one point and at a prescribed rate, Section 15 does not bar levy of sales tax by a State on declared goods, but it provides for refund of such tax to the persons making such sale in the course of inter-State Trade or commerce, Therefore, Section 15 clearly shows that there is no bar for levy of charge on declaration goods but that is to be refunded. In Section 15, no provision has been made for refund of tax on goods other than declared goods. From this, it can be gathered that the State has also the power to impose tax on the declared goods. But by virtue of Section 15, it is to be reimbursed. If the intention were not to tax goods other than declared goods, such provision should have been clearly made. Viewed from this angle, it cannot be said that the assessment and the demand of tax made by the authorities are bad and should be struck down. The State by the amended provision has only wanted to impose tax on intra-State sale and it is within the competence and powers of the State Legislature under Entry 54 of List II of Schedule VII of the Constitution of India.44. We agree with the above quoted reasoning and the conclusions reached by the High Court.