Transcription No. 31 (Sales Tax, KGST ACt, 1963)

                     From the materials on record, it is evident that the appellant or plaintiff had a genuine claim which was considered in great detail by the trial court and supported by oral and documentary evidence. The High Court has not adverted to any of the factual details or claim of the plaintiff except reversing the judgment and decree of the trial court on the principle of estoppel. Though the matter could be remitted to the High Court for consideration in respect of merits of the claim and the judgment and decree of the trial court, inasmuch as the work had been completed in August, 1973, final bill was raised on 31st March, 1974 and additional claim was raised on 16th March, 1976, to curtail the period of litigation, it would be appropriate that this Court scrutinizes all the issues framed by the trial court, its discussion and ultimate conclusion based on the pleadings and supported by the materials. Issue No. 15 in the trial court judgment related to estoppel which has been decided in favour of the plaintiff. In respect of other issues relating to execution of extra work, the trial court based its findings on the materials placed, accepted certain items in toto and rejected certain claims and, ultimately, rightly granted a decree for a sum of Rs. 2 lacs with proportionate costs and interest @ 6 per cent per annum from the date of the suit till realization and the plaintiff is entitled to the said amount. The impugned judgment of the High Court is set aside and the judgment and decree of the trial court restored. The issue that falls for consideration in the present appeals is whether the appellant would be entitled for refund of the tax which was paid by him to the seller, in view of the provisions of Section 44 of the Kerala General Sales Tax Act, 1963. One additional issue which was urged at the time of hearing of the appeals and requires consideration by the Court is as to whether the appellant would at all be entitled to claim exemption under Section 5(3) of the Central Sales Tax Act, 1956, as at the time of sale, the appellant could not allegedly show any evidence that it was the penultimate sale of tea. The appellants are exporters of tea. The appellant being the exporter of the aforesaid consignment claimed for exemption on the ground that the purchase was exempted under Section 5(3) of the CST Act. The said claim for exemption was also found to be genuine by the Assessing Authority, and was allowed in full. The appellant also made a claim for refund of tax collected from them by the seller at the time of purchase of tea. The said claim was rejected by the Assessing authority and it was held that they cannot claim for refund under Section 44 of the KGST Act since they have not paid the tax to the Department but it was the sellers who have paid the tax and therefore under the provisions of Section 44 of the KGST Act, the refund that could be made is to the dealer only and the assessee being not a dealer no such refund could be made to the appellant or assessee. Being aggrieved by the aforesaid order, the appellant filed an appeal before the Deputy Commissioner (Appeals) who considered the contentions of the appellant and upon going through the records found that there is an observation recorded by the assessing authority that the export sales is pursuant to the prior contract or prior order of the foreign buyers and also that export sales are supported by bill of lading, export invoices etc. The appellate authority recorded the finding that the claim of exemption under Section 5(3) of the CST Act is envisaged for the penultimate sales or purchase preceding the sale or purchase occasioning the export. However with regard to the refund it was noted that the goods purchased are taxable to the sale point and hence the liability to pay tax is on the part of the seller. Accordingly, it was for the Seller to prove that the sales are effected to an exporter in pursuance of prior contract or prior orders of the foreign buyers. It was held by the Appellate Authority that since, in the present case the aforesaid sellers namely the planters who sold tea to the appellant and on whom the burden lies to prove before the assessing authority that his sale is for fulfilling an agreement or order of the foreign buyer had not satisfied those conditions of discharging his burden. So, the appellant is not entitled to refund. (800)

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