GULJAG INDUSTRIES LIMITED Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE three special appeals are directed against the judgment of the learned single Judge dismissing the writ petitions on the ground of availability of alternate remedy and relegating the appellant to a statutory remedy under the Rajasthan Sales Tax Act, 1994. The appeals involve common questions of law and, as such, are disposed of by a common judgment. By three different petitions, for the assessment years 1995-96, 1996-97 and 1997-98, the appellants challenged the authority of the Assistant Commissioner, Special Circle-II, Commercial Taxes Department, Jodhpur, making a demand under section 29 of the Rajasthan Sales Tax Act, 1994, hereinafter referred to as "the RST Act", by treating the inter-State sales of goods effected in terms of section 3(b) and section 6(2) of the Central Sales Tax Act, 1956, hereinafter referred to as "the CST Act" as a local sale and thereby imposing tax at the rate of 4 per cent under the RST Act.

(2.) THE appellant, a public limited company having its registered office at Jodhpur with branches at different places in the State of Rajasthan, is engaged in the business of buying and selling chemicals, namely, methanol, chlorine, caustic soda lye, soda ash, hydrochloric acid, etc. It is averred that the appellant purchases the aforesaid chemicals in the course of inter-State trade from manufacturers/suppliers from Gujarat and effects subsequent inter-State sales to various buyers in the State of Rajasthan including SRF Ltd., Bhiwadi, by transfer of the documents of title to the goods, i.e., by endorsing goods receipts/bilties during their movement from Gujarat to Rajasthan. According to the appellant, these transit sales are duly supported by "C" forms from the purchasing dealers in Rajasthan and also forms E-I from the seller outside Rajasthan from whom the appellant has purchased the goods in the course of inter-State trade on "C" forms after paying 4 per cent CST. In the case of subsequent inter-State sales effected to SRF Ltd., Bhiwadi, the chemicals have been booked with the transporter by the appellant's Gujarat supplier for the destination Bhiwadi for being delivered to SRF Ltd., on the instructions and on account of the appellant. It is asserted by the appellant that in respect of all transactions in question, it is not in dispute that the appellant did not take physicactual delivery of the goods at any time during the course of inter-State movement and that the transporter had given delivery to the ultimate buyers in whose favour goods receipts/bilties were endorsed by the appellant. THE said goods merely passed through the areas where the appellant's branches/head office are located and they were carried to the destination of the subsequent buyers in that very vehicle in which they were brought from Gujarat by the same transporter. THE case of the respondents as set up in the impugned notice is that on account of the entries of the said sales made by the appellant in the daily sales report, preparation of invoices and delivery challans in respect of the said sales, it must be presumed that the appellant took symbolic/notional/constructive delivery of the goods which terminated their inter-State movement and the sales effected thereafter were "intra-State sales" of such goods to the buyers in Rajasthan on which local tax is leviable. Thus, the question raised before the learned single Judge was with respect to the scope and interpretation of section 3(b) and section 6(2) of the CST Act and powers of the assessing authority in that regard. According to the appellant, section 3(b) contemplates inter-State sales effected by transfer of documents of the title to the goods during their movement from one State to another and Explanation I appended thereunder provides that inter-State movement of goods commences from time the goods are handed over by the seller to the carrier or other bailee for transmission to the ex-State destination and such movement continues up to the time delivery of the goods is taken from such carrier or bailee by the purchaser. Subsequent inter-State sales satisfying the pre-conditions of requisite declaration are exempt from tax under section 6(2). THE learned single Judge following his own decision dated August 25, 2000 rendered in B.S.L. Ltd. v. State "S.B. Civil Writ Petition No. 651 of 2000", dismissed all the three petitions on the ground of availability of alternate remedy. THE order dated September 18, 2000 followed in the other two writ petitions, dismissed by orders dated September 20, 2000 and September 25, 2000, reads as follows : "In this case, the petitioner has alternate remedy available. In view of my judgment delivered in the case of B.S.L. Ltd. in S.B. Civil Writ Petition No. 651 of 2000 dated August 25, 2000, the petitioner in this case also will have to be relegated to the alternate remedy as provided by the statute. Reserving the right to pursue the alternate remedy, this petition is rejected."

(3.) IN order to examine whether a case falls in any of the exceptional categories to by-pass the alternate remedy, an apparent error shown on the face of the record is required to be seen. To appreciate the controversy involved, it is necessary to acquaint with the relevant legislative provisions.