While delivering a judgement, the Supreme Court remarked that extraordinary jurisdiction should not be used by a litigant only take a chance and then seek recourse of another remedy before the High Court.
The Bench observed that litigation could not be kept alive because the litigant wants so.
The genesis of the case:-
The petitioner approached the High Court against the assessment order passed by the Commercial Tax Department, the High Court dismissed the writ and held that the transactions in question were not sales during imports but were interstate sales; therefore, the petitioner cannot claim exemption u/s 5(2) of Central Sales Tax Act.
Aggrieved by the High Court’s order, the petitioner approached the Supreme Court.
The issue before the Supreme Court
Before the Court, the main issue was whether sales took place while importing goods into India and whether it qualified for the tax exemption.
The reasoning of the Court
After referring to various judgements on the issue, the Apex Court concluded that the High Court was correct in observing that once the appellants got the goods released after filing a bill of entry for domestic consumption, the goods got mixed in local goods and the import stream dried up.
The Bench stated that sale in the course of import has three crucial features:-
- There has to be a sale
- Goods should be imported into India by the importer.
- The sale must be part of the import.
A sale will only become a part of import if it occasions such import or if a sale happens by transfer of title before goods cross India’s custom frontiers.
The appellant also requested the Court to give them the liberty to file an appeal. In this regard, the Court observed that even though the appellant was aware of statutory appeal, they chose to file writ petitions in the High Court.
Therefore, if the appellant has already contested the matter on merits before the High Court, the Court cannot allow them to reopen the matter on appeal.
Title: Vellanki FrameWorks vs Commercial Tax Officer
Case No.:CIVIL APPEAL NOs. 1322-1323 of 2019
Date of Order: 13.01.2021
Coram: Hon’ble Justice AM Khanwilkar and Hon’ble Justice Dinesh Maheshwari