Kirtilal Kalidas Diamond Exports ... vs State Of Maharashtra And Ors.
2003 Latest Caselaw 1217 Bom

JUDGMENT

1. Since common question of law arise in both the petitions, both the petitioners were heard together and are being disposed of by a common order.

2. In these petitions, the contention of the petitioners is that the presentation of exim scrips for verification and endorsement of payment of premium to the Director General of Foreign Trade under a scheme in terms of circular No. 11 of 1993 dated May 5, 1993 and amended circular No. 14 of 1993 dated September 13, 1993 by the Government of India is not a sale as defined in clause (28) of Section 2 of the Bombay Sales Tax Act, 1959 as there is no transfer and as the same was returned to the petitioners who have utilised them for importing goods and that the premium received on exim scrips/ REP, etc., on account of devaluation of the Indian currency on two occasions is not a sale price as defined in clause (29) of the Bombay Sales Tax Act, 1959 as there is no element of transfer or sale and that, therefore, they are not liable to pay any sales tax as sought to be demanded by the respondents. It is their contention that the exim scrips/REP licences are presented for verification and endorsement of payment of premium to the Director General of Foreign Trade to the petitioners and have been utilised for the purpose of imports.

3. When the matter had come up for hearing on admission and interim relief, rule was issued along with the grant of interim relief in terms of prayer clause (d). Accordingly, the respondents were restrained from passing any order during the pendency of the petitions and/or to levy or collect sales tax in relation to the subject-matter of the petitions. However, it appears that on March 31, 1997 the respondents proceeded to pass the assessment order. The respondents under the affidavit dated September 25, 2003 have tendered an apology for having passed such order in spite of the interim order passed by this Court. In view of the said apology, the petitioners have not sought to initiate any contempt proceedings against the respondents.

4. In the course of hearing/argument, the learned advocate appearing for the respondents upon taking instructions from the respondents submitted that in the facts and circumstances of the case, the order passed on March 31, 1997 is non est for all the purpose and the respondents would hear the petitioners afresh and would pass an appropriate order in accordance with the provisions of law, and will also take into consideration the judicial law pronouncements by the apex Court as well as other courts relevant for the decision and for the purpose of hearing would issue necessary notice to the petitioners within four weeks from today and thereafter, after considering the reply of the petitioners and after giving personal hearing to the petitioners, would pass the necessary order within a period of six months from today.

5. In the course of hearing, petitioners have sought to rely on the decisions of the apex Court in the matter of Tisco General Office Recreation Club v. State of Bihar , Neyveli Lignite Corporation Ltd. v. Commercial Tax Officer, Cuddalore as well as of the 1 Calcutta High Court in the matter of State Bank of India (Overseas Branch) v. Commercial Tax Officer reported in [2003] 132 STC 234. Liberty to the petitioners to file appropriate reply and place before the respondents the necessary judicial pronouncements.

6. While holding the order of assessment dated March 31, 1997 to be bad in law and, therefore, quashed and set aside, petitions are disposed of with directions to the respondents to pass an appropriate order after hearing the petitioners and in accordance with the provisions of law, bearing in mind the law laid down by the apex Court and other courts in the relevant points.

7. It is made clear that this Court has not expressed any opinion on any of the points sought to be raised in these petitions.

8. Rule is made absolute accordingly, with no order as to costs.