Madras High Court
The State Of Tamil Nadu vs Tvl. Fisher Sanmer Ltd on 1 September, 2014
Bench: R.Sudhakar, G.M.Akbar Ali
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 01.09.2014 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR AND THE HONOURABLE MR. JUSTICE G.M.AKBAR ALI Tax Case (Revision) No. 29 of 2014 The State of Tamil Nadu rep. By the Joint Commissioner (CT) Chennai (South) Division Chennai. .. Petitioner - Vs - Tvl. Fisher Sanmer Ltd., No.147, Karapakkam Road, Chennai - 96. .. Respondent PETITION filed under Section 38 of the TNGST Act against the order dated 28.01.2013, passed by the Tamil Nadu Sales Tax Appellate Tribunal (Main Bench), Chennai made in T.A. No.4/2011. For Petitioner : Mr.A.R.Jayapratap, AGP (Taxes) O R D E R
(DELIVERED BY R.SUDHAKAR, J.) This Tax Case (Revision) is preferred by the Revenue aggrieved against the order passed by the Tamil Nadu Sales Tax Appellate Tribunal (Main Bench), Chennai.
2. The respondent/assessee in this case is a dealer in manufacture of valves relays etc. The assessee had reported a total and taxable turnover of Rs.3,26,68,145/- and Rs.3,10,88,587/- respectively for the assessment year 2005-06. The respondent had effected purchase of raw materials availing concessional rate of tax under Section 3(3) of the Tamil Nadu General Sales Tax Act by issue of Form XVII Declaration and used the same for manufacture of goods and effected export sales to 100% EOU. The respondent was assessed on a total cum taxable turnover of Rs.5,71,71,742/- under the Tamil Nadu General Sales Tax Act The Assessing Officer rejected the claim of the assessee that the purchase turnover under Section 3(3) corresponding to the export turnover could not be assessed to tax under Section 3(4) of the TNGST Act and assessed the turnover of Rs.2,60,70,677/- by adopting a formula at 1% under Section 3(4) of the Tamil Nadu General Sales Tax Act. Against the said assessment, the assessee preferred an appeal to the Appellate Deputy Commissioner, who dismissed the appeal, against which the assessee preferred further appeal to the Tamil Nadu Sales Tax Appellate Tribunal. The Tribunal, following the judgment of this Court in T.C. No.39/09 dated 8.10.10 reported in (2010 36 VST 67 (Mad) (Tube Investments of India Ltd. V. State of Tamil Nadu), allowed the appeal holding as follows :-
13. Hence, we have no hesitation to hold, by respectfully following the ratio held by the Division Bench of Honourable Madras High Court of Madras in the cae law cited above that export is also a sale as contemplated in the first part of Section 3 (4) of the TNGST Act, 1959 and consequently hold that purchase turnovers of raw materials by issue of form XVII declaration availing concessional rate of tax under section 3(3) of the TNGST Act, 1959 corresponding to the export of manufactured goods could not be assessed to tax under section 3(4) of the TNGST Act 1959 and we answer this point in favour of the appellant.
3. The Department, aggrieved against the above-said order of the Tribunal, is before this Court by filing the present revision.
4. In this case, the following substantial questions of law have been raised for consideration :-
i) Whether the order of the Appellate Tribunal is correct in interpreting the expression does not sell the goods so manufactured occurring in sub-section (4) of Section 3 of the Tamil Nadu General Sales Tax Act, 1959 as including not only intra state but also export sale?
ii) Whether the Appellate Tribunal is correct in invoking the principle of situs as envisaged in Explanation 3 (a) to Section 2 (n) of the Tamil Nadu General Sales Tax Act, 1959 for the purpose of interpretation of the expression does not sell the goods so manufactured as contained in sub-section (4) of Section 3 of the Act so as to bring it within the ambit of the said explanation?
iii) Whether the Appellate Tribunal is legally correct in distinguishing the judgment of the Hon'ble Supreme Court in the case of State of Karnataka Vs B.M. Ashraf & Co. reported in 107 STC 571 where it was held that a sale deemed to be in the course of export under Section 5 (3) of the Central Sales Tax Act, 1956, cannot be regarded as an intrastate sale?
iv) Whether the Appellate Tribunal is correct in construing that the levy of tax attracted under Section 3 (4) of the Act in the event of export sale of the manufactured goods as being a direct levy on the export sale itself and thus contravening Article 286 of the Constitution?
v) Whether the Appellate Tribunal is correct in placing a construction on expression in any other manner occurring under sub-section (4) of Section 3 of the Tamil Nadu General Sales Tax Act, 1959, would not include export sale within its ambit?
vi) Whether the Appellate Tribunal has failed to appreciate that Sections 3 (3) and 3 (4) of the Tamil Nadu General Sales Tax Act, 1959 are not designed as charging provisions as evident from the non-obstante clause occurring at the beginning of Section 3 (3) of the said Act?
vii) Whether the Appellate Tribunal has totally failed to consider that Tamil Nadu General Sales Tax Act, 1959, was enacted to levy tax on sales or purchases within the State of Tamil Nadu alone as evident from the pre-factory explanation to the said Act.
5. Though very many questions of law have been raised, as above, for consideration in this revision, the main ground raised in this revision is only in relation to the liability to tax in terms of sub-section (4) of Section 3 of the Tamil Nadu General Sales Tax Act.
6. However, at the time of admission of this case, learned Additional Government Pleader (Taxes) fairly submits that the issue for consideration as to whether the export sale in question would come within the purview of Section 3 (4) of the Tamil Nadu General Sales Tax Act has already been decided by this Court in a batch of cases in Tube Investments of India Ltd. - Vs The State of Tamil Nadu (T.C. Nos.249/06, etc. - dated 08.10.2010) and hence case on hand is squarely covered by the decision in Tube Investments case (supra).
R.SUDHAKAR, J.
AND G.M.AKBAR ALI, J.
7. In view of the said statement made by the learned Additional Government Pleader (Taxes) that the ratio laid down in Tube Investments case (supra), is equally applicable to the case on hand, following the said ratio, this tax case revision is also liable to be dismissed.
8. Accordingly, no question of law, much less substantial question of law arises for consideration in this revision and, this Tax Case (Revision) is, therefore, dismissed. No costs.
(R.S.J.) (G.M.A.J.) 01.09.2014 Index : Yes/No Internet : Yes/No sl To 1. The Tamil Nadu Sales Tax Appellate Tribunal (Main Bench), Chennai. 2. The Appellate Deputy Commissioner (CT) - V, Kancheepuram. 3. The Assistant Commissioner (CT), Thiruvanmiyur Assessment Circle.T.C.(R) No. 29 of 2014