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Paramananda Nayak and ors. Vs. the State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberO.J.C. Nos. 754, 755, 756, 757 and 784 of 1970
Judge
Reported in[1974]33STC411(Orissa)
AppellantParamananda Nayak and ors.
RespondentThe State of Orissa and ors.
Appellant AdvocateD. Mohanty, ;J.K. Patnaik ;and P.C. Mohapatra, Advs.
Respondent AdvocateAdditional Government Adv. ;and Standing Counsel (S.T.)
DispositionPetition dismissed
Cases ReferredBen Gorm Nilgiri Plantations Co. v. Sales Tax Officer
Excerpt:
.....proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which..........which the delivery of goods takes place; and(3) where as a necessary incidence of the contract of sale goods sold are required to be exported or imported or transported out of the state in which the delivery of goods takes place.their lordships further said:we have earlier noticed that this court in a series of decisions has pronounced in unambiguous terms that where under the terms of a contract of sale, the buyer is required to remove the goods from the state in which he purchased those goods to another state and when the goods are so moved, the sale in question must be considered as a sale in the course of inter-state trade or commerce. this is a well-established position in law....there is no material on the record before us from which it can be held that the purchaser, i. e., the.....
Judgment:

R.N. Misra, J.

1. These are five separate writ applications on behalf of five different betel leaf dealers of the district of Ganjam. Each of the petitioners has been subjected to tax under the Orissa Sales Tax Act, 1947 (hereinafter referred to as the Orissa Act). In respect of some of these petitioners, assessments have become final, while in regard to others, after assessments were made appeals had been filed and at the time the writ petition was filed either first appeals before the Assistant Commissioner or second appeals before the Tribunal under the Orissa Act were pending disposal. At the instance of the parties, these writ applications have been heard together as common questions of fact and law arise. In fact, there was only a single hearing in respect of all these cases as suggested by the learned counsel for the parties.

2. When the writ applications were heard, a preliminary objection was raised to the maintainability of these petitions on the ground that the petitioners were pursuing their remedies under the statute and they should not be permitted to invoke the extraordinary jurisdiction of this court. Thereupon the petitioners' counsel withdrew the appeals from the appropriate forums and intimated this court that the writ petitions would be pressed.

3. As the allegations are more or less the same in these writ petitions, we propose to deal with the facts as stated in 0. J.C. No. 754 of 1970. The State Government by notification dated 6th August, 1962, declared that the sale of betel leaves would be liable to purchase tax from 1st September, 1962, at the rate of 3 per cent. By a subsequent notification the rate of tax was reduced to 2 per cent with effect from 1st June, 1963, and a rebate of 2 per cent was allowed if the dealer proved that the stocks on which purchase tax had been paid, had subsequently been sold in the course of inter-State trade or commerce. By notification dated 26th June, 1969, the provision for payment of rebate was deleted with effect from 1st July, 1969.

4. The petitioners contend that the withdrawal of the provision for rebate amounted to double taxation of the turnover of the betel leaves. As a fact, the betel leaves having been exported outside the State, the sale was in the course of inter-State trade and was not liable to be assessed under the Orissa Act. It is claimed that the deletion of the provision of rebate makes the same transaction liable to two sets of taxes and gives rise to a situation which conflicts with the provision of Article 286(1)(a) of the Constitution.

On behalf of the revenue, the learned standing counsel disputes all these allegations and contends that the assessment in these cases has been made on the transaction of purchase preceding the inter-State sale. According to the learned standing counsel, the goods at the purchase point preceding the transaction constituting the inter-State sale that has been subjected to tax. It is not the one and the single transaction which has been subjected to two taxes. The purchase tax under the Orissa Act is levied at the time of passing of title in the goods in favour of the petitioner and tax under the Central Sales Tax Act (hereinafter referred to as the Central Act) is payable, according to the taxing department, when the goods are exported out of the State in terms of Section 3 of the Central Act.

5. Article 286 of the Constitution provides restrictions on the imposition of tax on the sale or purchase of goods. Sub-article (1) provides:

No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place

(a) outside the State; or

(b) in the course of the import of the goods into, or export of the goods out of, the territory of India.

Sub-article (2) of Article 286 authorises Parliament to formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in Clause (1). In exercise of powers vested under Sub-article (2) of Article 286, Parliament has enacted the Central Act. Sections 3 and 5 thereof, which have relevance on the point, may now be extracted:

3 A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase --

(a) occasions the movement of goods from one State to another; or

(b) is effected by a transfer of documents of title to the goods during their movement from one State to another.

5. (1) A sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India.

(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.

6. Mr. Mohanty does not rightly challenge the power of the State Legislature nor the provision in the Act in the matter of levy of purchase tax on betel leaves. Section 3-B of the Orissa Act authorises the State Government to declare any goods or class of goods to be exigible to tax on the turnover of purchases. The only two contentions which are raised by him and which require examination in these cases are:

(a) The withdrawal of the provision of rebate as provided under the Orissa Sales Tax Act leads to double taxation of the same turnover and, therefore, is bad in law.

(b) There can be no levy of any purchase tax under the Orissa Act inasmuch as the transaction in question is in the course of inter-State trade and commerce as provided under Section 3 of the Central Act.

As admitted by the petitioner, he is a registered dealer under the Orissa Act as also under the Central Act. He purchases betel leaves within the State of Orissa and claims to export the major portion thereof to different places outside the State of Orissa and that the remainder is sold within the State. Mr. Mohanty emphasises on the feature that in the counter-affidavit of the assessing officer (opposite party No. 3) this assertion in paragraph 2 of the writ petition was not denied, while in a later affidavit filed by the opposite parties 1 and 2 a different plea was taken. That there is a purchase by the petitioner within the State of Orissa of betel leaves prior to export thereof by him is not in dispute. Under Section 3-B of the Orissa Act, at such point of purchase a tax is leviable. If a part of the turnover already assessed to purchase tax is sent outside the State of Orissa, the liability accruing under the Central Act is bound to arise unless by operation of law, two taxes under two different statutes would not be imposable. It is true, the petitioner buys betel leaves and at the time the purchase is made by him under the Orissa Act one set of tax (purchase tax) is payable by the petitioner. No provision has, however, been pointed out to us either under the Orissa Act or the Central Act or even the Constitution which would ban the imposition of the purchase tax if and when the goods subjected to purchase tax are exported or if purchase tax had been collected, the tax under the Central Act would not be payable or for the position that only one of those taxes is leviable.

The proviso to Section 3-B of the Orissa Act excludes imposition of sales tax under the Orissa Act on those goods which are liable to purchase tax. Bat the proviso is no protection against taxation under the Central Act. The question raised by Mr. Mohanty for the petitioner could be disposed of against him on this bare analysis. But, in view of the other contention and the fact that a number of authorities were cited before us at the Bar, we propose to deal with the matter further.

7. The Supreme Court, in the case of K.G. Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes, Madras Division, Madras [1966] 17 S.T.C. 473 (S.C.), in clear terms indicated that the expression 'occasions the movement of goods' occurring in Section 3(a) and Section 5(2) of the Central Act has the same meaning.

In the case of Tata Iron and Steel Co. Ltd. v. S.R. Sarkar [1960] 11 S.T.C. 655 (S.C.), their Lordships of the Supreme Court at length dealt with the provisions of Sec-lion 3(a) of the Central Act. In the case of State of Bihar and Anr. v. Tata Engineering and Locomotive Co. Ltd [1971] 27 S.T.C. 127 (S.C.), their Lordships of the Supreme Court reviewed a series of decisions of that court in regard to the concept of 'in the course of inter-State trade' and concluded by saying:

The decided cases establish that sales will be considered as sales in the course of export or import or sales in the course of inter-State trade and commerce under the following circumstances:

(1) When goods which are in export or import stream are sold;

(2) When the contracts of sale or law under which goods are sold require those goods to be exported or imported to a foreign country or from a foreign country as the case may be or are required to be transported to a State other than the State in which the delivery of goods takes place; and

(3) Where as a necessary incidence of the contract of sale goods sold are required to be exported or imported or transported out of the State in which the delivery of goods takes place.

Their Lordships further said:

We have earlier noticed that this court in a series of decisions has pronounced in unambiguous terms that where under the terms of a contract of sale, the buyer is required to remove the goods from the State in which he purchased those goods to another State and when the goods are so moved, the sale in question must be considered as a sale in the course of inter-State trade or commerce. This is a well-established position in law....

There is no material on the record before us from which it can be held that the purchaser, i. e., the petitioner, was required to remove the goods from the State of Orissa to other States under the terms of the contracts of sale entered into between him and the persons to whom betel leaves were exported outside the State. It, therefore, follows that the petitioner used to make purchases in his favour within the State and a major portion of the purchased betel leaves was being exported by him to places outside the State of Orissa. There is, however, no material from which it can be said that the acquisition of betel leaves by the petitioner was under preexisting contracts, the terms whereof necessitated or occasioned the movement of the betel leaves from the State of Orissa to places outside it. On the other hand, it is manifest that the petitioner of his own accord buys betel leaves within the State of Orissa and under the provisions of the Orissa Act he incurs liability to pay purchase tax. In respect of that part of the betel leaves which he resells in Orissa he is not liable to pay sales tax under the Orissa Act in view of the proviso under Section 3-B of the Orissa Act. In the absence of any positive material to show that the petitioner made purchases of betel leaves pursuant to the existing contract with outsiders, the terms of which contract occasioned movement of the goods from Orissa to places outside it, we are not in a position to hold that the petitioner's liability under the Central Act can be taken into consideration to exempt him from the liability under Section 3-B read with Section 4 of the Orissa Act.

8. In the case of Dhirendranath Das v. State of Orissa [1970] 26 S.T.C. 522, a Bench of this Court dealt with the case of a fish dealer. Fish in Orissa is liable to purchase tax. A reference was made to this court under the Orissa Act to answer the question as to whether the State of Orissa was competent to impose purchase tax on goods which were meant for sale outside Orissa. On an examination of the legal aspect with reference to several cases, their Lordships concluded thus:

Applying the aforesaid test to the present case, it would be seen that the assessee has made out no case that he was under any obligation by virtue of any contract or understanding to export fish to Calcutta. There are also no materials or finding that the fishermen selling the fish to the assessee had anything to do with the export of fish by the assessee to Calcutta. No case was made out and no finding sought that the assessee was under any obligation to export the fish to Calcutta after purchase from the fishermen. Thus the fishermen are in no way connected with the export of fish to Calcutta though in fact fish purchased were exported. The assessee could have sold the fish inside Orissa after the purchase. Even assuming that the assessee had the intention from the very start that he would export the fish to Calcutta, there is no proof that he had an obligation to export the fish to Calcutta. The mere factual export of fish does not therefore bring the case as being a sale in the course of inter-State trade...

Their Lordships quoted a passage from the case of Ben Gorm Nilgiri Plantations Co. v. Sales Tax Officer [1964] 15 S.T.C. 753 (S.C.), which is to the following effect:. For instance, the foreign purchaser either by himself or through his agent purchases goods within the territory of India and exports the goods and even if the seller has the knowledge that the goods are intended by the purchaser to be exported, such a transaction is not in the course of export for the seller does not export the goods, and it is not his concern as to how the purchaser deals with the goods. Such a transaction without more cannot be regarded as one in the course of export because etymologically 'in the course of export' contemplates an integral relation or bond between the sale and the export....

The purchase by the petitioner is distinct from the subsequent export by him to places outside Orissa and the transaction of purchase and the subsequent export cannot be tagged together to constitute one single transaction coming within the meaning of Article 286(1)(a) of the Constitution or the provision of Section 3 of the Central Act so as to make the levy of tax under Section 3-B read with Section 4 of the Orissa Act illegal.

As the same question has been raised in all these cases and we do not accept the contention of the several petitioners, each of the writ petitions has to be dismissed. We accordingly dismiss them, but in the peculiar facts of the case, we direct the parties to bear their own costs.

B.K. Ray, J.

I agree.


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