from foreign country for sale at 5 .
shops. v_
3.Shipping document and inveice. jraiSed= _
by M/s.DIAGEO Amstettiehy. Amsterdam,’ =
Netheriand on ITDC.”
2. This appeal is filed–..bY~~._pHoteI Vlqplestieningll’
the correctness cf theerder–*’d.t§ted’~-»iA3t1e,’réivruery, 2009
passed in Writ urging
various Grounds} it V
3. ‘iearri’ed” counsel appearing fer
Sr: _o_–nVVVV’beha|f of the appellant
contended = tVhat_Ft§.hel'”~l.ea«riied Single Judge erred in
direeting fl”!-1-“.V_:V ap’vpei’l’ant.. to avail alternative remedy
,.-ef and tnesame is bad in law. “Further, the learned
t_’__S’ihgle to take into consideration the
required to be examined in View of the
“i..,previsinifiS of Article 286(1)(b) of Constitution of India
“il:”i’eald””A?~¥th Section 2(ab) of the Central Sales Tax Act. He
it stibmitted that the sales effected from the duty free shop,
which is admittedly lecated beyond the customs station at
Bengaluru International Airport, are not cevered by the
l»t/
charging Section under the KI.S.T. Act and not_4.iiab’_le.._ta
tax under The Centrai Act. Therefore, the
Judge should have decided the question oi::m.er’i.ts”‘V it
instead of dismissing the writ
the appellant to avail the a!ter_natl\ie.t_remedsg;v’h”;f:te_Hleerned.:’:>
Counsel contended that the’Vl4l”iearnVed Jtadge has
faiied to note that the -iolrdleri the assessing
authority is \{!:fEt’i’1i3’i_;i.t jtiris1>e’i¢tianA”‘a:;~~.ttjgftfansactlons could
not iiablea’ place beyond the
territoriai*E.tlQ5,.,ditii;@5~L°3–f,g”-indlg)'”Th the instant case, the
appel£a’nt’ fai:::”i%;[t>t:: that it was beyond the
customs oa–r:riers:o._f Indiaiaas per the provisions of Section
2(a:Ltx§’} C$T Aét;vT!herefore, the assessing officer had no
‘j;ir’iaéicttion:v’toflevy the sales tax as the transactions were
adrnittedilfefi’jhefirond the Customs Frontiers of India.
Theiiefovlreivtlhe writ petition should have been disposed of
“{*»thei”cases on merits by the learned single judge instead of
direeting the appeilant to avail alternative remedy of
appeal. The iegal issues required to be decided by the
learned Single Judge are, whether the saies made are in
ii/
the course of import or export and the assessme’Ittf”e:rder
passed is w§th¥n the jurisdtction of the
Since, The learned Single 3udge__fa§I__e’d ted
legal aspects, the order £5 had in;”:.iavgé_’_’ehd ‘i’:a;5ie”to
aside. Further, iearned sine_i_e*-Judgev-A”not5e:e*’;that”Vt’
the assessment officer is
without jurisdiction of Act and
therefore, it Hence, there
was no need to examine the
facts zihd recsira thiewfi .
“‘~!earAned””*_.»e.”counsel for the appellant
pieced” rfeiienc’e._V_VVVn the decisions of the Madras High
Caicutte High Court and the Judgment
Court wherein Section 5(2) felt for
eerie-idevfiatieri and it has been interpreted that the sale ef
:_”‘g.oeds within the customs frontiers in India, are exempted
fre’r?;~’the safes tax in View of Section 5(2) of the CST Act.
iearned counsei submitted that documents are
V produced by the appeilant-assessee before the assessing
it;
officer to show that the provisions of Section
Act are attracted to the facts of the case._.V__”fh-erefo~re,the
assessing officer had no
assessment order. i-ie also placed”–..reiianc”e.’g’uponj ithef
decisions of the Supreme Couifin the”ease:.VofV.’iEg’hélTE CF V
HIMACHAL PRADESH .gfi’§§5i)3A CEMENT LTD.,
AND ANOTHER (AND omaaiAr;psAts;ossia,io.iea in (zoos)
142 src: O0Q.1″an;ji:l also l(IRAPd SPINNING
MILLS V5.5 reported in 1999
additional customs
duty isnot.’_leviaVbie’; decisions have not been
considerediev ‘t?1eV[leAa*r_nednV Single Judge and therefore, the
.order”‘lsv—h~a’d in law. Another contention urged
eounsei on behalf of the appellant is that
the”aéssessn3_ent order is a nuility in the eye of law. The
further viicontentlon urged is that it is purely a question of
V’ :~ff”lawi”t.hat arose for consideration before the learned single
‘ itidge and the same shouid have been examined in detail.
liw/
5. The learned Additional Government _4!§\d*.-focate
Smt.Ge-etha Menon, placed reliance upon Se_:.:i:’ion*”».’S{i2jij
the Act with regard to the import of t%je’*
custom frontiers of India by thefivappeiilanlt,and”*-th’ejg_ood_s
were stored in the bonded warehouVse_’and said
Shops situated at International_Airi§o:tt,_”fbeyanahalii,
Bangalore. According to’: are not in
conformity W:it!’i’::Iih:aE zsigittsmst the Act and the
iaw iaid gdiotfin in the case of
:<.Go9tixi;a.*zfi§i}éli§é tiara §s.sT;§m:= or KERALA reported
in AIRd,997 aforesaid decision, guidelines
have beerriahidv downIv{tith~'i' reference to Section 5(2) of the
at p'aArag.ra,e'n -«~12 aflzer analysing the various
Constitution Bench of the Supreme Court.
further contended that the order is
passed the assessing officer after giving an opportunity
'lithe Hassessee and the same is subject to appeai.
* iigerefore, the iearned Single Judge rlghtiy dismissed the
Writ petition giving liberty to the appeliant to avail
alternative remedy of fiiing an appeal. She submitted that
im/
the impugned order does not warrant interference~.i:n««..§#i~ew
of the decision of the Supreme Court
The learned Single Siudge rightly_Jdec_lined"to""
discretionary power and directed th'ei..apAp-eli'an't
alternative remedy which ishpesffectlyv.jCnstified" i~n_'~th.e iactswt'
8: circumstances of the case.
6. We_h’ay_e the rival legal
co ntentio ns ~V..aa’rpeseVV_to’VVfind out whether
the learned’:”Sivn§Via;_: in dismissing the writ
petition to avail the alternative
remedy. “The to be answered against the
appellant fer the–.tol_lowing reasons:-
C 5(2) of the Central Sales Tax Act fell for ,
consideratiiojia ‘hefore Constitution Bench ef the Apex Court
‘*-.in the “following decisions.
cor-$55 aonno, BANGA¥..OREvs. JOINT
COMMERCIAL TAX OFFICER, MADRAS 81 OTHERS
reported in AIR 19?1 SC 1570.
\m/
…..1o…
(1)
case may be, must actuaiiy take pleceq –. A’
(2) Such sale or purchase in In_ei’ie*’b*- :-
must itself occasion such
not vice verse i.e. inhibit” «should
occasion such safe.
(3) The havfegwenwteiretf 3
import stream whehsfhey are
to safe or pqrciaasegi _ __ .
(_4,i,_VThe igimpojii” -._o2’5’_th’e concerned
er:-medias a direct
–V..reseit’ ‘con§.:erned sale or
” trensactiiont
” _ of import can be
tai<en_ to fietre continued tiil the
A. only it
.Virnpori?ed'V'gooo'*s reach the local users
the import has commenced
fitihrough the agreement between
iiereign exporter and an intermediary
névho does not act on his own in the
transaction with the foreign exporter
and who in his turn does not seii as
principai the imported goods to the
focal users.
(6) There must be either a single sale
which itseif causes the import or is in
M
The safe or purchase, as the
-13..
jurisdiction and Authority under the provisio_a–s:«.ef”it§1e..}iict_;’
On the other hand, the 3udemeht relied”v*ai§_e,h”‘V:§y,V it
iearned Additional Gevernment :;§;c¥veciete4″ssis.’ ‘a§;:’I’itéi’bie”A.:td
the facts & situatien to hoid’_t’h.at the
the jurisdiction to pass assessment
appeiiant. Therefore, the learned
Single Judge does not call for yzfipeai.
The wfit appeal of to be
dismissed.
8. Accordingly, ‘the’
sa/si
Iudgg
Sdf:-E
Iud§§