IN THE HIGH COURT OF KERALA AT ERNAKULAM
ST.Rev..No. 119 of 2008()
1. M/S. INDIA FOOD EXPORTS
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.ARIKKAT VIJAYAN MENON
For Respondent :SRI.MUHAMMED RAFEQUE
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :12/03/2009
O R D E R
C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ.
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S.T.Rev. NO: 119 OF 2008
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Dated this the 12th March, 2009.
JUDGMENT
RAMACHANDRAN NAIR, J.
The question raised in the revision filed by the petitioner is
whether the Tribunal is justified in disallowing exemption on
export-sale of cashew kernel purchased in Kerala against form 18A
issued by the petitioner.
2. We have heard counsel appearing for the petitioner and
Govt. Pleader appearing for the respondent.
3. The case of the petitioner is that the very same goods
purchased in Kerala was transported to petitioner’s factory at Tamil
Nadu and thereafter shipment was made from Tuticorin.
According to him suppliers from whom the cashew kernel
purchased against form 18A issued by the petitioner were granted
exemption and consequently exemption claimed under Section 5(1)
should have been granted to the petitioner based on proof of
export produced. However, Govt. Pleader submitted that the
Tribunal declined relief for the reason that the petitioner did not
identify the exported goods as the goods purchased in Kerala
S.T.Rev.No: 119/2008 2
against form No:18A issued by them. In fact the assessment is
seen made under Section 5(1)(c) of the KGST Act which is confirmed
by the Tribunal. In the first place we feel the matter was not
properly handled by the assessing officer because if exemption
under Section 5(1) is declined to the petitioner for any valid reason
the same should have been intimated to the assessing officer
before whom the supplier was registered to consider disallowance
of exemption claimed based on form 18A issued by the petitioner.
Even though disallowance is not made in respect of exemption
claimed by the supplier under Section 5(3), still the petitioner will
not be entitled to exemption under Section 5(1) if actual export is
not proved. In this case even though goods were stated to be
moved out of Kerala it was the duty of the petitioner to prove the
exemption for the turnover of goods purchased against issue of
form 18A by them. There is nothing to indicate in the Act that in
order to claim export exemption dealer should ship the goods to
the foreign buyer from any port in Kerala. On the other hand
shipment to foreign buyer can be made from any place in India and
the same will be sufficient for claiming exemption. However, what
S.T.Rev.No: 119/2008 3
is required to be proved is that the item purchased is the very same
item exported, though after transport to another state and
shipment made from that state. In other words, the transport of
goods by the petitioner to branch in Tamil Nadu and later shipment
from Tuticorin will not disentitle for exemption if petitioner proves
that the goods purchased was the very same goods transported
outside Kerala and shipped from Tuticorin.
4. In view of the above findings we give one more opportunity
to the petitioner to prove with documents that the goods purchased
was transported to Tamil Nadu and therefrom it was shipped to
foreign buyer. For this purpose petitioner should necessarily prove
documents showing contemporaneous transfer after purchase to
Tamil Nadu which is check post signed transport documents like
delivery note and contemporaneous export documents for shipment
from Tuticorin. The assessing officer will examine the documents
produced by the petitioner and if petitioner is able to prove that the
very same goods are transported outside Kerala and shipped, then
exemption should be granted. Sales Tax Revision is disposed of by
setting aside the order of the Tribunal and the first appellate
S.T.Rev.No: 119/2008 4
authority and remanding the matter to the assessing officer for
fresh consideration.
C.N. RAMACHANDRAN NAIR
Judge
K. SURENDRA MOHAN
Judge
jj
K.K.DENESAN & V. RAMKUMAR, JJ.
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M.F.A.NO:
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JUDGMENT
Dated: