The State of Tamil Nadu vs Tvl. Rajan Universal Export (Mfrs) Pvt. Ltd. and The Secretary, Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench)

K. Raviraja Pandian, J.—The writ petitions are filed questioning the correctness of the order of the Sales Tax Appellate Tribunal dated

02.12.2002 made in STA Nos. 981 and 982 of 2002.

The point involved in the writ petitions is whether at the time of transfer of title to the goods, the goods have not crossed the custom frontier or

not?

For the assessment years 1985-86 and 1986-87, exemption had been granted originally by the assessing officer in respect of certain turnover,

which is stated to be high-sea sales u/s 5(2) of the Central Sales Tax Act. Subsequently, pursuant to the inspection by the inspecting wing of the

appellant authority, exemption originally granted was cancelled and turnover was brought to tax on the ground that the title to the goods were

transferred after the goods reached the port and warehoused. The order of revision has been upheld by the Appellate Assistant Commissioner.

However, the Tribunal has reversed the same by finding that after the amendment to the Central Sales Tax Act, and introduction of Section 2(ab)

of the Act, wherein the crossing the custom frontier of India was defined to mean ""crossing the customs limits of the area of a custom station in

which imported goods or export goods are ordinarily kept before the clearance by customs authorities"" and further taking into consideration the

fact that the custom frontier would include the appended warehouses as per the Customs Act, and as per Section 2(13) of the Customs Act,

''customs station'' means ""any customs port, customs airport or land customs station"", and after taking into consideration Sections 47 and 68 of the

Customs Act, which provides for clearance of warehoused goods for home consumption, and after following the decision of the Tamil Nadu

Taxation Special Tribunal in TC (R) Nos. 2682 and 2683 of 2000 dated 14.07.2000 and the order of the High Court in writ petitions No. 20085

and 20086 of 2000 dated 17.10.2001 and with reference to the fact that after the receipt of bill of lading, the goods were warehoused, the

importer has endorsed the bill of lading by transfer of title to the goods to the purchaser before clearing the goods, held that the exemption u/s 5(2)

of the Act is available to the assessee.

The first respondent is an assessee and was originally assessed to tax on a total and taxable turnover of Rs. 8,93,250/- and Rs. 8,87,500/-

respectively under the Central Sales Tax Act, 1956 for the assessment year 1986-87 on 13.6.1988. The place of business of the first respondent

was inspected by the Inter-State Investigation Cell at Chennai on 18.4.1990 and verified the records regarding the high-sea sale transaction of the

first respondent.

It is the case of the appellant that the respondent entered into contract with the foreign seller for supply of Art Film and out Board Motors for

home consumption under O.G.L/REP licences. When they received the bill of lading of the foreign seller they entered into the contract with buyer

in India to sell the goods on high sea sale and claimed exemption u/s 5(2) of the Central Sales Tax Act. The bill of lading was surrendered to the

shipping agency through clearing agent and got delivery order. Then the bill of entry was filed before the Customs authority in the name of the

importer and after getting the goods assessed for duty warehoused the same by executing bond. The right of the ownership of the property

remained in the name of the importer during the period the goods were kept in the warehouse under bond warehousing charges and insurance

charges of the goods are raised in the name of the importer. Thus the right of ownership of goods is retained by the importer, though the goods

were said to have been sold on the high-sea sale. Therefore, despite the documents of title were transferred, the importers only have handled the

goods subsequently and the property remained in the name of the importer. Therefore, the sale is not in the course of import. Keeping the goods in

the warehouse on execution of the bond is concession given to the importer under the Customs Act for the purpose of payment of customs duty.

Thus, the subsequent sale will attract sales tax under T.N.G.S.T. Act and Central Sales Tax Act.

We heard the argument of the learned Counsel on either side and perused the materials on record.

Section 5(2) of the Central Sales Tax Act reads as follows:

When is a sale or purchase of goods said to take place in the course of import or export.-

(1)....

(2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the Territory of India only if the sale or

purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the Customs

Frontiers of India.

Section 2(ab) of the Central Sales Tax Act reads as follows:

Crossing the Customs Frontiers of India"" means crossing the limits of the area of a Customs Station in which imported goods or export goods are

ordinarily kept before clearance by Customs Authorities:

Explanation: For the purposes of this clause, ""Customs Station"" and ""Customs authorities"" shall have the meaning as in the Customs Act, 1962.

Section 2(11) of the Customs Act defines ""customs area"" under the Customs Act, 1962 as ""the area of a customs station and includes any area

in which imported goods or export goods are ordinarily kept before clearance by Customs Authorities"". So, the goods ought not to have been

cleared from the area of the Customs station. Admittedly in this case, the goods are warehoused and not cleared on payment of the customs duty.

The warehouse for which the goods were cleared are regarded as customs station as defined under the Act. Admittedly, the transfer of title of the

documents were well prior to the goods are cleared for home consumption on the payment of customs duty.

The Special Government Pleader very strenuously contended that none of the documents has been produced either before the assessing officer

or before the appellate authority in support of the claim, but suddenly before the Tribunal some documents were produced which is impermissible

in law. On merits, the learned Special Government Pleader is not able to substantiate his contention that only after the goods have not crossed the

customs limit document of title were transferred in favour of the buyer and the buyer got the godos assessed and paid the customs duty and cleared

the goods.

In paragraph 8 of the order of the Tribunal, it is clearly stated that at the time of hearing of the appeal, the Counsel for the appellant has

produced two volumes of relevant papers, such as import invoice, bill of lading with endorsement of high sea sales contract, high sea sales invoice,

bill of entry, etc. with regard to 11 transactions for the assessment years 1985-86 and 5 transactions for the assessment year 1986-87 and also

represented that the same documents were produced before the lower authorities, which were not considered by them. When this statement of the

highest fact finding authority constituted under the Act is not repudiated, the contention of the learned Counsel for the revenue that the assessee has

suddenly inserted second volume before the Appellate Tribunal, cannot be accepted.

On facts also, we find that the approach of the Tribunal, having regard to the statutory provision, Section 2(ab) of the Central Sales Tax Act,

and Section 2(13) of the Customs Act and also Sections 47 and 68 of the Customs Act, holding that the assessee is entitled to exemption, as in

this case the goods cannot be regarded as having crossed the customs frontier, when it was warehoused, is correct and we do not find any merit in

the writ petitions. The writ petitions stand dismissed. No costs.