GSTR Nos.47 to 53 of 1986 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
GSTR Nos. 47 to 53 of 1986
Date of decision: 15.9.2008
State of Haryana
-----Appellant
Vs.
M/s Haryana Bone Mills, Panipat
-----Respondent
CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
HON'BLE MR JUSTICE AJAY TEWARI
Present Mr. Sanjeev Kaushik, Advocate for the revenue.
JUDGMENT:
1. This reference has been made under section 42 of the
Haryana General Sales Tax Act, 1973 (in short, ‘the Act’) at the
instance of revenue for assessment years 1967-68, 1968-69, 1969-
70, 1972-73 and 1974-75, for opinion on following questions:-
“1. Whether the scope of rule 29(v) of the Punjab
General Sales Tax Rules, 1949 is restricted to intra-State
sales in view of the fact that the State Legislature can
legislate only in respect of transactions of sales and
purchase within the State and that it does not apply to
sale of goods in the course of export outside India?
GSTR Nos.47 to 53 of 1986 2
2. Whether any effect could be given to rule 29(v) of the
Punjab Rules, for the purposes of allowing deductions
from the gross turn over of the dealer in respect of goods
exported out of the territory of India through Bombay
dealers in view of the interpretation of section 5(i) of the
Central Sales Tax Act, 1956 by the Hon’ble Supreme
Court in the case of Mohd.Serajudin vs. State of Orissa
(36 STC 136) prior to its amendment with effect from
1.4.1976?
3. Whether the assessee is debarred from claiming
exemption on export of goods out of the territory of
India through an intermediary and not directly to the
foreign buyers, for the period prior to 1.4.1976?
2. The assessee claimed deduction under the Central Sales
Tax Act, 1956 on account of export of bone meal out of territory of
India made through M/s Haryana Trading Company and Reliable
Traders, both of Bombay. It was not direct contract between the
assessee and the foreign buyer. The assessing authority disallowed
the claim holding that the sales were for export and not in the
course of export. The Tribunal, however, decided in favour of the
GSTR Nos.47 to 53 of 1986 3
assessee. It appears that there was conflict in the order of the
Tribunal for different years.
3. Learned counsel for the revenue fairly states that the
matter has since been covered by judgment of this Court in
Regular Traders, Madhopuri, Ludhiana v. State of Punjab and
others, (2006) 28 PHT 87. In the said judgment, following the
earlier judgment of Division bench of this Court in State of
Haryana v. Liberty Foot Wear Company, (2005) 25 PHT 427, it
was held that having regard to language of Rule 29 of the Rules,
judgment of the Hon’ble Supreme Court in Mohd.Serajuddin v.
State of Orissa, (1975) 36 STC 136 on interpretation of section 5
of the Central Sales Tax Act, 1956 was not applicable and the State
law was more liberal which provided deduction from the gross turn
over of goods proved to be exported out of territory of India
whether by one transaction or by series of transactions i.e. either
directly by the dealer or through intermediary or through
consecutive sales. In the present case, admittedly, goods have been
exported out of India, though the dealer has not directly entered
into contract of export but has exported the goods through the
intermediary.
GSTR Nos.47 to 53 of 1986 4
4. In view of the above position, following the earlier
judgments of this Court, the questions referred have to be
answered against the revenue and in favour of the assessee.
5. The reference is disposed of accordingly.
( ADARSH KUMAR GOEL )
JUDGE
September 15, 2008 ( AJAY TEWARI )
gs JUDGE