JUDGMENT
S.R. Nayak, J.
1. This special appeal is directed against the order of the Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad dated October 15, 1993 passed in Ref. LV(3)/138/89. The petitioner-firm was finally assessed for the assessment year 1979-80 by the Commercial Tax Officer, Rajahmundry on a total and net turnover of Rs. 35,59,950 vide his order No. 8845/79-80 dated July 16, 1981. Out of this total turnover, Rs. 35,37,370 related to purchase of cashew-nuts and the balance, turnover of gunnies. The petitioner disputed the assessment of the entire turnover and preferred an appeal before the Appellate Deputy Commissioner, Kakinada. The Appellate Deputy Commissioner, Kakinada, by his order No. 427/91-82 dated June 30, 1982 allowed the appeal filed by the petitioner-assessee and ordered exemption of the entire turnover. Thereafterwards, the Joint Commissioner (Legal) revised the order of the Appellate Deputy Commissioner relating to turnover of Rs. 35,37,370 on cashew-nuts and passed orders confirming the assessment to tax on a turnover of Rs. 7,23,639 and permitted exemption on the remaining turnover by his order dated September 30, 1986. The petitioner being aggrieved by the said order preferred Special Appeal No. 26 of 1988 and this Court by its order dated June 22, 1990 set aside the order of the Commissioner and remanded the proceedings to the Commissioner with a direction to give opportunity to the petitioner and decide the dispute afresh. After remand, the Commissioner by his order dated October 15, 1993 set aside the order of the Appellate Deputy Commissioner as confirmed by the Joint Commissioner (Legal) and held that the exempted turnover of Rs. 28,13,725.51 is liable to tax under Section 5(3) of the Central Sales Tax Act, 1956 read with Section 20(1) of the Andhra Pradesh General Sales Tax Act, 1957 thus restoring the original assessment order of the Commercial Tax Officer. Hence this special appeal.
2. In our considered opinion, apart from the points raised in this special appeal, this special appeal should fail in the light of the judgment of the Apex Court in Vijayalaxmi Cashew Company v. Deputy Commercial Tax Officer [1996] 100 STC 571. In the said judgment, the apex Court has declared and opined that cashew kernels and raw cashew-nuts are two different commercial commodities and they are not the same goods. While holding so, the apex Court observed :
“The question in this case is whether the cashew-nut kernels which were exported are ‘those goods’ which were purchased by the assessee in the penultimate transaction. In other words, whether the raw cashew-nuts which were purchased were ‘those goods’ which were exported ? This was precisely the question that was answered in the negative in Shanmugha Vilas case [1953] 4 STC 205 (SC) ; [1954] SCR 53. Therefore, no distinction can be drawn between the cases now under appeal and the decision of this Court in Shanmugha Vilas case [1953] 4 STC 205 ; [1954] SCR 53 on the plea that the scope of Sub-section (3) of Section 5 of the Central Sales Tax Act was wider than Article 286 of the Constitution. It is true that Sub-section (3) by a legal fiction has widened the scope of export sale, but the basic concept remains the same. In order to get immunity from taxation by the State Legislature, the goods exported must be the same goods which were purchased.
The question raised in these appeals is whether the purchase of raw goods made by the appellants after which the cashew kernels were extracted and exported to foreign countries could be subjected to the State Sales Tax Act in view of the provisions of Section 5(3) of the Central Sales Tax Act. In other words, the question is whether the export of cashew kernels obtained out of raw cashew-nuts would amount to export of ‘those goods which had been purchased’. The answer will depend on the nature of the cashew kernels that are exported and the raw cashew purchased by the dealers. This aspect of the matter was gone into in depth in Shanmugha Vilas case [1953] 4 STC 205 (SC) ; [1954] SCR 53 by S.R. Das, J. (as he then was). It has been recorded in the judgment of Das, J., that the case was heard at great length and over several days and ultimately the High Court was directed to investigate into the disputed facts and send a report. On the basis of the report given by the High Court, the appeals were heard and finally disposed of. It will be wrong to distinguish this case on the ground of any special facts. It does not appear from the judgment that any special feature of cashew trade peculiar to Shanmugha Vilas was considered by this Court. The appellants have also not been able to show any special fact in this case which is contrary to what has been found in the judgment of Das, J. In fact, no endeavour has at all been made to show how cashew kernels are: extracted and in what way the kernels are basically nothing but the fruits originally plucked. The facts noted in the remand report sent by the High Court have not been shown to be contrary to the facts found in the case of the appellants.”
3. In Consolidated Coffee Ltd. v. Coffee Board, Bangalore , the Supreme Court laid down the conditions precedent for applying Section 5(3) of the Central Sales Tax Act. They are :
1. There must have been a pre-existing agreement or order to sell specific goods to a foreign buyer ;
2. The last purchase or sale referred to in Section 3 must have taken place after the said agreement or order with the foreign buyers was entered into ;
3. The sale or purchase must have been for the purpose of complying with such pre-existing agreement or order.
Therefore, the petitioner is not entitled to claim exemption from tax under Section 5(3) of the Central Sales Tax Act, 1956. However, the learned counsel for the petitioner would strenuously contend that, that was not the reason set out by the Joint Commissioner (Legal) or the Commissioner to revise the assessment order under Section 20(1) of the Andhra Pradesh General Sales Tax Act, 1957, The learned counsel would also point out that in the light of the judgment of this Court in Singh Trading Company v. Commercial Tax Officer, Srikakulam [1979] 44 STC 1, such a ground was also not available to the Joint Commissioner (Legal) or the Commissioner to revise the order under Section 20(1) of the Andhra Pradesh General Sales Tax Act, 1957.
4. The law declared by the Supreme Court in Vijayalaxmi Cashew Company v. Deputy Commercial Tax Officer is declaratory in nature and that declaration came to be made by the apex Court arising out of Central Sales Tax Act only. Apart from this legal position, on merit also, we do not find any case for the petitioner. There is no controversy between the parties that during the relevant period, the petitioner purchased 6,04,560 kgs. of cashew-nuts at Rajahmundry between April 24, 1979 and July 16, 1979, but there is controversy relating to actual dates of export contracts entered into between the petitioner-firm and foreign customers. The Commissioner has pointed out that during the same period only 4,28,526 kgs. of cashew-nut kernels were exported from Rajahmundry unit of the petitioner-firm. No acceptable substantive evidence was placed before the Commissioner to establish that the entire purchases made at Rajahmundry between April 24, 1979 and July 16, 1979 were exported in pursuance of pre-existing contracts. The findings recorded by the Commissioner are essentially on questions of facts. No material is placed before us to satisfy ourselves that the factual findings recorded by the Commissioner are perverse or based on no evidence. Further, in the light of the judgment of the Supreme Court in Vijayalaxmi Cashew Company v. Deputy Commercial Tax Officer [19961 100 STC 571 the judgment of this Court in Singh Trading Company case [1979] 44 STC 1 is no longer good law.
5. The special appeal is devoid of any merit and it is accordingly dismissed with no order as to costs.