KIRTILAL KALIDAS DIAMOND EXPORTS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(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. 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.

(2.) 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.

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