PHILCO EXPORTS Vs. SALES TAX OFFICER

JUDGEMENT

(1.) Challenge in the present petition is to notifications No.F.10(48)/2001- Fin(A/cs) 120-128 ( Annexure A), F.101(48)/2001-Fin (A/cs)147-15 (Annexure-B) and F.10(48)/2001-Fin(A/cs) 156-164 (Annexure-C) all dated 31/3/2001, issued by the order of the Lt Governor of NCT of Delhi in exercise of powers conferred under the First Proviso to sub-section (1) of Section 4 and sub-section (2) of Section 7 of the Delhi Sales Tax Act, 1975 (43 of 1975) ( in short, the Act), as amended by the Delhi Sales Tax (Amendment) Act, 1997 ( Delhi Act No.l of 1998) read with the Delhi Sales Tax (Second Amendment) Act, 2000 ( Delhi Act No.2 of 2001) ( in short, the second Amended Act). By the first notification dated 31/3/2001 in the Second Schedule, amendment was made-and one entry No.67 was inserted which reads as: "REP, DEPB and other tradable licenses". Similarly by the second amendment, in terms of newly inserted entry No. 83 turnover in respect of the aforesaid items was to be taxed at the first point. The said notification was issued in exercise of powers conferred under section 5 of the Act as amended by the 2nd Amendment Act. So far as third notification is concerned, the same has been issued in exercise of powers conferred under Section 71 of the Act and the newly added entry No. 10 was made in the Schedule appended to Sub-clause (1A) of Clause XXXIV of Rule 11 of the Delhi Sales Tax Rules. 1975 (in short, the Rules).

(2.) According to the petitioner, the levy of tax on transfer of credit lying in Duty Entitlement Passbook, (in short, DEPB) is illegal, as the same is not goods and there was no sale of goods and, in any event, even if it is conceded, for the sake of argument, that the same can be equated with goods they are part of excluded items either as actionable claim or money. In essence, it is submitted that transfer of the credit amount lying in DEPB does not come within the ambit of definition of goods and in any event transfer of the same does not amount to sale of goods. Per contra, learned counsel for the respondent submitted that the matter is no longer res Integra and decision of the Apex Court in Vikas Sales Corporation vs Commissioner of Commercial Taxes and another, 1996 102 STC 106 is clearly applicable to the facts of the case. In reply, learned counsel for petitioner submitted that the said decision does not relate to DEPB and related to import licence called REP licence and therefore, the decision has no application. It is elaborated that DEPB is not a licence and therefore, the ratio has no application .

(3.) In order to appreciate rival submissions, it is necessary to take note of the definition of "goods" as appearing in the Act. The same reads as follows: