K GOPINATHAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) According to our esteemed colleague Sujata V. Manohar, J., these appeal are required to be allowed. With profound respect, it is not possible for us to agree with her findings and the conclusions in so far as it is held by her that Section 5 sub-section (2) of the Central Sales Tax Act, 1956 will cover the transactions in question. We, however, agree with her so far as it is held that Section 2(ab) of the Central Sales Tax Act has no retrospective effect and that there is no evidence on record to attract the second part of Section 5(2) which deals with sale on high seas. We, therefore, record our separate reasons for confirming the decisions impugned in these appeals.

(2.) In Civil Appeal Nos. 4955-77 of 1991 a common question falls for consideration. It is to the following effect :

(3.) In Civil Appeal Nos. 3647-52 (NT) of 1986 CCI is the assessee. The sale of imported raw cashewnuts from African countries to the local purchasers by the CCI have been brought to tax under the provisions of the Karnataka Sales Tax Act, 1957. The appellant is a private company registered under the Companies Act and is said to be a subsidiary of the State Trading Corporation wholly owned by the Government of India. The appellant company, the registered officer of which is at Cochin in Kerala, imports raw cashew from East African countries under licences issued by the Controller of Imports and Exports, and allots such cashew to the actual users for being processed and for export of a certain percentage of the raw cashew allotted. In this process the appellant-company sells cashew to the actual users. The appellant had not got itself registered as a dealer in the Karnataka State nor had it filed returns for the years 1970-71 to 1975-76. The contention of the appellant-company before the Taxing Authority was to the effect that the transaction of sale by the company to the actual users was in the course of import and, therefore, the State Sales Tax Act could not encompass such a transaction. The Taxing Authority in Karnataka on the other hand sought to levy sales tax on the appellant on the basis that it was a non-resident dealer. The contention of the CCI was negatived by Karnataka Appellate Tribunal, Bangalore. The appellant's Revision before the High Court came to be dismissed by a Division Bench of the High Court by its order dated 3rd March 1986 and that is how the CCI is before us on special leave.