KUMAR SINHA SON OF SHRI G.C. SINHA Vs. STATE OF BIHAR THROUGH THE SECRETARY-CUM- COMMISSIONER OF COMMERCIAL TAXES, BIHAR

JUDGEMENT

(1.) THIS writ petition under Article 226 of the Constitution of India is directed against the order dated 4.3.2005 (Annexure -3), passed by the Commercial Taxes Tribunal, Bihar, Patna, in Revision Case No. PT -430/00 & PT - 430A/00 (M/s Indian Oil Corporation V/s.

(2.) The State of Bihar), whereby the revision application preferred by the petitioner in terms of Section 46 of the Bihar Finance Act, 1981 (hereinafter referred to as "The Bihar Act"), has been dismissed and the assessment orders and the appellate order have been upheld. The primary question for consideration in this writ petition is whether or not the petitioner has really exported petroleum oil and lubricant products to Nepal. If yes, whether or not such a transaction is sale in the course of export to a foreign country. If so, then the question of quantification of the goods exported to Nepal arises for the purpose of exemption from taxation under the Bihar Act during the period in question, namely, 1995 -1996. A brief statement of facts essential for the disposal of this writ petition may be indicated. Nepal is a sovereign, independent land -locked country, and shares a long length of boundary with India. In order to arrange supply of the goods in question, the Government of Nepal entered into a treaty with the Government of India for export of the same from India to Nepal on the terms and conditions mentioned in the treaty (Annexure -6). The petitioner is a public sector undertaking of the Government of India, the entire shares of which are held by the President of India and the official nominees. It is an instrumentality of the Government of India and is engaged in the manufacture, production, storage and sale of the products in India. Its counterpart body is Nepal Oil Corporation (hereinafter to be referred as NOC), an instrumentality of the Government of Nepal. In view of terms of the treaty, the actual of export of the products from India to Nepal has been entrusted to IOC, and the duty of import in Nepal has been entrusted to NOC. The treaty was followed by an agreement between IOC and NOC executed on 27.6.1995 (Annexure -4), stating therein the detailed terms and conditions of export of the products from India to Nepal. In view of the provisions of the treaty and the agreement, regular flow of export of the materials in question took place from India to Nepal through Bihar. The petitioner has been assessed year after year under the provisions of the Bihar Act whereby it has earned the benefit of exemption from payment of tax because the entire flow of goods has been treated to sale in the course of export. The petitioner earned the benefit of exemption for the years 1990 -91, 1993 -94, 1994 -95, 1997 -98 and 1998. -99 and 1999 -2000. The authorities under the Act have, however, taken a different view for the years 1991 -92, 1992 -93, and 1995 -96. As stated hereinabove, the present writ petition is confined to the period 1995 -1996, whereby the benefit of exemption from payment of tax under the Act has been denied to the petitioner on the ground that the primary evidence to support its case of export to Nepal has not been produced. We wish to make it clear that the impugned order deals with a number of issues and the present writ petition is confined to the said question.

(3.) THE petitioner (IOC) submitted its returns for the period 1995 -96. During the course of assessment proceedings, it produced before the learned Assessing Officer the following documents: - (i) the treaty (Annexure -6), (ii) the agreement between IOC and NOC (Annexure -4), (iii) a certificate in support of import of petroleum products issued by NOC to the petitioner, and (iv) all Bhansar receipts issued by NOC which contain the details of export. On a consideration of these materials and the returns of the petitioner, the learned Assessing Officer came to the conclusion that the bills of export, which is the primary evidence to prove the factum of export as well as the quantity of the products exported has not been produced. The claim for exemption from payment of tax under the Bihar Act has, therefore, been rejected. The petitioner 'sappeal has also been rejected which, in its turn, has been upheld by the impugned order.