1. The only question that arises in this tax case is whether the assessee is entitled to claim exemption on a turnover of Rs. 18,09,254.44 under section 5(3) of the Central Sales Tax Act. The assessee claimed the said exemption on the ground that the turnover represents penultimate sales which occasioned the export, and therefore, the turnover is entitled to exemption under section 5(3) of the Act. The assessee did not produce any documents to show that there was a prior contract of sale between the assessee and the foreign buyer, and that only in fulfilment of that contract for performing his obligations under that contract, the assessee purchased goods. It is well-established that to claim exemption under section 5(3), the dealer must show that there was a prior agreement of sale between the dealer and the foreign buyer and it is with a view to perform his obligation to export the goods under that contract, that he purchased the goods locally and this purchase should be taken as a penultimate sale entitled to exemption under section 5(3). This has been so held by the Supreme Court in Consolidated Coffee Ltd. v. Coffee Board, Bangalore : 3SCR625 . The assessee in this case had merely produced certain affidavits from the exporters to the effect that they have purchased goods from the assessee for export by them in fulfilment of their export commitment with their foreign buyers and that, therefore, the sales are entitled to exemption. The assessing authority did not give any weight to the affidavits filed by the assessee and held that in the absence of production of documentary evidence to show that the sales by the assessee was a penultimate sale before export, the assessee cannot be allowed exemption. The said view has been upheld by the Appellate Assistant Commissioner on the same ground that the assessee has not produced the requisite materials to prove that his sale was the penultimate sale immediately preceding the export. The matter was taken to the Tribunal. Before the Tribunal also, in support of his claim for exemption, the assessee relied on the affidavits given by the exporters to the effect that the sales were effected by the assessee only to fulfil their obligations under the contract of sale entered into by them with the foreign buyer. The Tribunal did not give any weight to the affidavit in the absence of the other documents such as the original contracts or other contemporaneous documents. The rejection of the claim by the Tribunal has been challenged in this tax case.
2. The learned counsel for the assessee contends that the Tribunal is in error in rejecting the affidavits as not admissible in evidence and that in certain circumstances, the affidavits also can be taken as substantial evidence in the absence of the necessary documents. We find from the order of the Tribunal that they have not rejected the affidavits as not admissible in evidence. What they have stated is that they are not inclined to accept the affidavits as fully supporting the claim of the assessee for exemption in the absence of other relevant documents. Therefore, the Tribunal has not proceeded on the basis that the affidavits cannot be taken as evidence, but they have not chosen to give any weight to the affidavits in the absence of other corroborative documents or materials. Merely because the assessee has chosen to produce affidavits in support of his claim for exemption, it cannot be said that it must be automatically accepted as sufficient proof of the claim for exemption. Whether the statements made in the affidavits should be taken as correct or not is for the Tribunal, and it cannot be said that in every case, if evidence is adduced in the form of affidavits, it should be straightway accepted by the Tribunal without reference to the other facts and circumstances. In our view, in this case, the exporters, who had given affidavits, could have easily produced the agreements entered into with the foreign buyers to show that the export contract was entered into before the sales were effected by the assessee and that the said sales are penultimate sales preceding the export sale. On the facts, the Tribunal appears to have come to the right conclusion. The tax case is dismissed.