M/S HOTEL ASHOKA (INDIAN TOUR.DEV.COR.LTD.)versusASSISTANT COMMISSIONER OF COMMERCIAL TAXES &ANR.

                        [2012] 1 S.C.R. 808

A    M/S HOTEL ASHOKA (INDIAN TOUR.DEV.COR.LTD.)
                             v.
    ASSISTANT COMMISSIONER OF COMMERCIAL TAXES
                           &ANR.
              (Civil Appeal No. 2560 of 2010)
B                      FEBRUARY 03, 2012
               [D.K. JAIN AND ANIL R. DAVE, JJ.]

        CENTRAL SALES TAX ACT, 1956:
c
        s .. 5(2) rlw Art. 286 of the Constitution and s.2(ii) of
  Customs Act - Goods sold at duty free shops at the
  International Airport - Held: State Government has no right to
  tax any such transaction which takes place at the duty free
  shops which are not within the customs frontiers of India -
0
  Karnataka value Added Tax, 2003 - Customs Act, 1962 -
  s.2(ii) - Constitution of India, 1950-Art. 286 -Arts.226 and 136
  - Alternative remedy.

       The appellant, a dealer registered under the
E Kamataka Value Added Tax Act, 2003 and the Central
  Sales Tax Act, 1956, filed returns stating that no tax was
  payable by it in respect of the goods sold directly to the
  passengers af1he duty free shops at the International
  Airport, Bengaluru. However, the Assistant
F Commissioner of Commercial Taxes directed the
  appellant to pay a sum of Rs. 4,20,70,900/- by way of sales
  tax. The writ petition filed by the appellant was dismissed
  by the Single Judge of the High Court on the ground that
  it had not exhausted the alternative remedy under the Act.
G The Division Bench of the High Court declined to
  interfere. Aggrieved, the Assessee filed the appeals.

       Allowing the appeals, the court

       HELD : 1. It is true that the appellant had rushed to
H                              808
  HOTEL ASHOKA (INDIAN TOUR.DEVCOR.LTD.) v. ASSTT        809
          COMMNR. OF COMMERCIAL TAXES

the High Court without exhausting equally efficacious A
alternative statutory remedy. The Single Judge of the High
Court was also right when he directed the appellant to
move the statutory appellate authority. In normal
circumstances, even this Court would have expressed
the same opinion, but looking to the fact that the special B
leave petition has already been admitted and the matter
pertains to the assessment year 2004-2005, it would not
be in the interest of justice to relegate the appellant to the
statutory authorities especially when the legal position is
very clear and the law is also in favour of the appellant. c
 [Para ,28] [819-H; 820-A-B]

     2.1 In the instant case, admittedly, the goods brought
from foreign countries by the appellant had been kept in
bonded warehouses and, as such, the said goods are
deemed to have been kept outside the customs frontiers           D
of the country. Before the goods were imported in the
country, they had been sold at the duty fnie shops of the
appellant situated at the International Airport of
Bengaluru which are also beyond the customs frontiers
of India. [Para 18-19 & 23] [817-E; 818-A-B; 819-A-B]            E

       2.2 No tax on the sale or purchase of goods can be
  imposed by any State when the transaction of sale or
  purchase takes place in the course of import of goods
. into or export of goods out of the territory of India. Thus,   F
  if any transaction of sale or purchase takes place when
  the goods are being imported in India or they are being
  exported from India, no State can imposu any tax thereon.
  In view of the provision of sub.s. (2) of s.5 of the Central
  Sales Tax Act, 1956, it is clear that a sale or purchase of    G
  goods shall be deemed to take place in the course of
  import of the goods into the territory of India only if sale
   or purchase takes place before the goods have crossed
  the customs frontiers of India. [Para 20 and 22] [818-B-
   C; G]
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    810      SUPREME COURT REPORTS                [2012] 1 S.C.R.


A      2.3 When any transaction takes place outside the
  customs frontiers of India, the transaction would be said
  to have taken place outside India. Though the transaction
  might take place within India but technically, looking to
  the provisions of s. 2(11) of the Customs Act and Article
B 286 of the Constitution, the said transaction would be said
  to have taken place outside India. It cannot be said that
  the goods are imported into the territory of India till the
  goods or the documents of title to the goods are brought
  into India. Admittedly, in the instant case, the goods had
c not been brought into the customs frontiers of India
  before the transaction of sales had taken place and,
  therefore, the transactions had taken place beyond or
  outside the custom frontiers of India. (Para 30] (820-E-G]

        2.4 It is not disputed that in the instant case the
D goods were sold by giving physical possession at the
  duty free shops to the customers. Simply because the
  sales had not been effected by transfer of documents of
  title to the goods and the sales were effected by giving
  physical possession of the goods to the customer, it
E would not mean that the sales were taxable under the Act.
  (Para 31] (821-B-C]

       2.5 Looking to the provisions of Article 286 of the
  Constitution, the State of Karnataka has no right to tax
F any such transaction which takes place at the duty free
  shops owned by the appellant which are not within the
  customs frontiers of India. The order of assessment so
  far as the transactions, which are tho subject matter of
  this litigation, are concerned, is quashed. (Para 24 and 32]
G (819-B-C; 821-D]
        State of Travancore-Cochin and others v. Bombay
  Company Ltd. Alleppey 1952 SCR 1112 =AIR 1952 SC 366;
  State of Travancore-Cochin and others v. Shanmugha Vilas
  Cashewnut Factory Qui/on 1954 SCR 53= AIR 1953 SC 333;
H J. V. Gokal & Co. (Private) Ltd. v. Assistant Collector of Sales
 HOTEL ASHOKA (INDIAN TOUR.DEVCOR.LTD.) v. ASSTI.      811
         COMMNR. OF COMMERCIAL TAXES

Tax (Inspection) and Others 1960 SCR 852=AIR 1960 SC         A
595; Kiran Spinning Mills v. Collector of Customs AIR 2000
SC 3448; K. Gopinathan Nair and Others v. State of Kera/a
1997 (3) SCR 226 = (1997) 10 SCC 1; Binani Bros. (P) Ltd.
v. Union of India and Others 1974 (2) SCR E19 = (1974) 1
SCC 459; Mohd. Serajuddin & Ors. v. State of Orissa 1975     B
(O) Suppl. SCR 169 (1975) 2 sec 47 - cited.

                    Case Law Reference:
  1952 SCR 1112                 Cited        Pera 11
  1954 SCR 53                   Cited        Para 11
                                                             c
  1960 SCR 852                  Cited        Para 11
  AIR 2000 SC 3448              Cited        Para 11
  1997 (3) SCR 226              Cited        Para 11         D
  1974 (2) SCR 619              Cited        Para 11
  1975 (0) Suppl. SCR 169       Cited        Para 11
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.          E
2560 of 2010.

    From the Judgment & Order dated 9.6.2009 of the High
Court of Karnataka at Bangalore in Writ Appeal No. 881 of
2009.
                                                             F
                            WITH
C.A. No. 10404-10412 of 2010.

    Joseph Vellapally, Randhir Chawla, Renu Sehgal, Kumar
Rajesh Singh, Praveen Kumar for the Appellant.
                                                             G
     K.N. Bhat, K.K. Sharma, Anantarayana M.G., V.N.
Raghupahy, S. Wasim A. Qadri Khanna, Suchismita, Zaid Ali,
Anil Katiyar for the Respondents.

    The Judgment of the Court was delivered by
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    812      SUPREME COURT REPORTS                 [2012] 1 S.C.R.

A         ANIL R. DAVE, J.
    CIVIL APPEAL NO. 2560 OF 2010
       1. In this appeal, an order dated 9th June, 2009 passed
  by the High Court of Karnataka, in Writ Appeal No. 881 of 2009
B (T-CST) is challenged by the appellant, who is an assessee and
  registered ·as a dealer under the provisions of the Karnataka
  Value Added Tax Act, 2003 (hereinafter referred to as 'the Act').
  Facts giving rise to the present litigation in a nutshell are as
  under:
c       2. The appellant, M/s Hotel Ashoka, is managed by India
  Tourism Development Corporation Limited (hereinafter referred
  to as 'the Corporation'). The Corporation is having its duty free
  shops at all major International Airports in India. At the said duty
  free shops, the appellant sells several articles including liquor
D to foreigners and also to Indians, who are going abroad or .
  coming to India by air. We are concerned with a duty free shops
  situated at an International Airport at Bengaluru. The appellant
  is registered as a dealer under the Act as well as under the
  Central Sales Tax Act, 1956 (hereinafter referred to as 'the
E Central Act'). In the return filed under the Act as well as under
  the Central Act for the relevant period, the appellant had stated
  that though liquor, cigarettes, perfumes and food articles were
  sold at the duty free shops at the Bengaluru International Airport,
  no tax was payable by the appellant as the goods which had
F been sold at the duty free shops were sold directly to the
  passengers and even the delivery of goods at the duty free
  shops was made before importing the goods or before the
  goods had crossed the customs frontiers of India.
       3. According to the appellant, no tax can be levied under
G the Act or under the Central Act when the goods are sold in
  the course of import or before the goods have crossed the
  customs frontier of India as per the provisions of Section 5 of
  the Central Act and so far as the Act is concerned, no tax can
  be levied, if the sale takes place before the goods crosses the
H customs frontiers of India as no State can tax the sale or
  HOTELASHOKA (INDIAN TOUR.DEV.COR.LTD.) v. ASSTT.           813
   COMMNR. OF COMMERCIAL TAXES [ANIL R. DAVE, J.]

purchase of goods which are outside the concerned State i.e.         A
the State of Karnataka in the instant case, as per the provisions
of Article 286 of the Constitution of India. In spite of the above
stand of the appellant, the Assistant Commissioner of
Commercial Taxes (Transition -12) Bengaluru, by an
assessment order dated 28th May, 2008 directed the appellant         B
to pay a sum of Rs.4,20,70,900/- by way of sales tax.

     4. Being aggrieved by the assessment order passed by
the Assistant Commissioner of Commercial Taxes Bengaluru,
the appellant filed W.P.(C) No. 10989 of 2008 in the High Court      C
of Karnataka which was rejected on 11th February, 2009, on
the ground that the appellant had not exhausted equally
efficacious alternative remedy available to it under the
previsions of the Act. The learned Single Judge did not
consider merits of the case for the aforestated reason.
                                                                     D
     5. Being aggrieved by the view expressed by the learned
Single Judge, the appellant preferred Writ Appeal No. 881 of
2009(T-CST) before the Division Bench of the High Court which
was also dismissed on 9th June, 2009 as the Division Bench
found substance in the observations made by the learned              E
Single Judge, hence the appellant has filed this appeal before
this Court.

     6. Learned counsel appearing for the appellant drew our
attention to the provisions of Article 286 of the Constitution and
                                                                     F
Section 5 of the Central Act. He submitted that the Constitution
does not permit any State to impose tax on sale or purchase
of goods where such sale or purchase takes place outside the
State or in the course of the import of the goods into or export
of the goods out of the territory of India.
                                                                     G
      7. He further submitted that in the instant case, all sales
had taken place at the duty free shops of the appellant before
the goods had crossed the customs frontiers of India. He stated
that the goods, which are the subject matter of the present
litigation were brought in India and had been kept at bonded         H
    814      SUPREME COURT REPORTS                  [2012] 1 S.C.R.


A warehouses and thereafter they were transported to duty free
  shops which were outside the customs frontiers of India.

        8. He further submitted that till the goods cross the customs
  frontiers of India, technically the goods are considered to have
  remained outside India and once the sale or purchase of the
8
  goods which takes place in the course of import or export or
  outside the concerned State, according to the provisions of
  Article 286 of the Constitution, no State can impose any tax on
  such a sale or purchase. As the duty free shops of the appellant
C are outside the customs frontiers of India, as per legal fiction,
  the sale of goods cannot be said to be in any State but
  technically such a sale would be considered to be in the course
  of import of the goods and, therefore, the sale effected at the
  duty free shops of the appellant cannot be taxed under the Act.

D      9. He further submitted that all the duty free shops of the
  appellant are in customs area as defined under Section 2(11)
  of the Customs Act, 1962 (in short the 'Customs Act').
  According to the said definition, 'customs area' is the area of
  a customs station and it includes any area in which imported
E goods or export goods are ordinarily kept before clearance by
  Customs Authorities. According to him, the goods can be said
  to have been imported only after sale of the goods at duty free
  shop to a passenger, if the passenger brings the goods in
  India, after crossing the customs frontiers of India and not
F before that, because import means bringing of goods into India
  from a place outside India and as the duty free shops are in
  customs area, and as the goods are sold before clearance of
  Customs Authorities, it cannot be said that the goods sold by
  the duty free shops were sold after they were imported or in
G Karnataka State.

         10. For the aforestated reasons, according to him, the
    assessment order passed by the Assistant Commissioner of
    Commercial Taxes, Bengaluru dated 28th May, 2008 is bad in
    law. According to the learned counsel, the said officer had
H
 HOTELASHOKA (INDIAN TOURDEVCOR.LTD.) v. ASSTI.               815
  COMMNR OF COMMERCIAL TAXES [AN!L R DAVE, J.]

committed a grave error by treating the sale at duty free shops        A
as sale after import of the goods in the State of Karnataka.

     11. He further submitted that the learned Single Judge as
well as the Division Bench of the High Court ought not to have
passed orders against the appellant as the appellant had not B
exhausted equally efficacious alternative statutory remedy. He
submitted that the issue involved in the litigation had already
been decided by this Court and other High Courts and the legal
position was so clear that the appellant ought not to have been
asked to exhaust alternative statutory remedy. He submitted that C
when facts were not in dispute and the law had been settled
by this Court in several other cases, it was not proper on the
part of the learned Single Judge to dispose of the petition only
on the ground that the a!ternative remedy had no'. been
exhausted. He also submitted that the Division Bench also
committed an error by confirming the order passed by the D
learned Single Judge of the High Court. So as to substantiate
his submission, the learned counsel relied upon several
judgments including the judgments delivered in the cases of
State of Travancore-Cochin and others v. Bombay Company
Ltd. Alleppey [AIR 1952 SC 366], State of Travancore-Cochin E
and others v. Shanmugha Vilas Cashewnut Factory Qui/on
 [AIR 1953 SC 333), J. V. Gokal & Co. (Private) Ltd. v. Assistant
Co!lector of Sales Tax (Inspection) and Others [AIR 1960 SC
595] and in Kiran Spinning Mills v. Collector of Customs [AIR
 2000 SC 3448].                                                   F

     12. On the other hand, learned senior counsel Shri Bhat
and Shri Sharma, assisted by learned counsel Shri Qadri
appearing for the respondent-State, mainly submitted that the
orders passed by the learned Single Judge as well as by the            G
Division Bench of the High Court are just and proper. They
submitted that the High Court rightly did not entertain the petition
as the appellant had not challenged the validity of the order
before the appellate authority appointed under the Act. They
submitted that the Act has set up appellate authorities and
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     816     SUPREME COURT REPORTS                 [2012] 1 S.C.R.

A according to the provisions of the Act, an order passed by the
  assessing officer should be first challenged before the first
  appellate authority and only after all the remedies under the Act
  are exhausted, the appellant should have approached the High
  Court. As the statutcry remedies had not been exhausted by
s the appellant, according to the learned counsel, the High Court
  had rightly dismissed the appeal by confirming the order
  passed by the learned Single Judge.

        13. On merits they submitted that purchase of the goods
   at the duty free shops of the appellant would be taxable under
C the provisions of the Act. They submitted that after purchase
   of the goods at the duty free shops, passengers enter the
   country by crossing the customs frontiers. The goods were
   actually delivered to the customers and sales were not effected
  by transfer of documents of title to the goods and, therefore, it
D can not be said that no tax could have been levied on the sales
  effected at the duty free shops. According to them, crossing of
  customs frontiers had no significance because once the goods
  are brought into our country and especially in the State of
  Karnataka, all sales effected in the State of Karnataka would
E be subject to tax as per the provisions of the Act. The duty free
  shops situated at Bengaluru International Airport are situated
  in the State of Karnataka and, therefore, sales effected at the
  said shops would be taxable under the provisions of the Act.

F        14. They further submitted that according to Section 5 of
   the Central Act, the sales which caused import or which
  occasioned import would not be subject to tax under the Act.
  According to them, all these transactions referred to in the
  assessment order had not taken place in the course of import
G or they had not caused or occasioned import, and, therefore,
  they would be subject to tax under the Act. They further submitted
  that the goods had not been sold by transferring the documents
  of title to the goods. According to them, before the goods had
  crossed the customs frontiers, they ought to have been
  transferred by transfer of documents of title to the goods, but
H
 HOTEL ASHOKA (INDIAN TOUR.DEV.COR.LTD) v. ASSTI.         817
  COMMNR. OF COMMERCIAL TAXES [ANIL R. DAVE, J.]
as it was not done so, it cannot be said that the sales had taken A
place in the course of import of the goods before crossing the
customs frontiers of our country. So as to substantiate the
aforestated submissions, they relied upon the judgments in K.
Gopinathan Nair and Others v. State of Kera/a ((1997) 10
SCC 1], Binani Bros. (P) Ltd. v. Union of India and Others B
[(1974) 1 SCC 459], Mohd. Serajuddin & Ors. v. State of
Orissa [(1975) 2 sec 47].

    15. In the circumstances, they submitted that the appeal
be dismissed with costs and the stay granted by this Court be    C
vacated.

    16. We heard the learned counsel at length and
considered the impugned order of assessment as well as the
orders passed by the High Court of Karnataka and the
judgments referred to by the learned counsel.                    D

   17. In our opinion, the facts stated by the counsel are not
much in dispute.

        18. It is an admitted fact that the goods which had been
 brought from foreign countries by the appellant had been kept I:.
 in bonded warehouses and they were transferred to duty free
 shops situated at International Airport of Bengaluru as and
 when the stock of goods lying at the duty free shops was
 exhausted. It is also an admitted fact that the appellant had
 executed bonds and the goods, which had been brought from F
 foreign countries, had been kept in bonded warehouses by the
  appellant. When the goods are kept in the bonded warehouses,
  it cannot be said that the said goods had crossed the customs
  frontiers. The goods are not cleared from the customs till they
  are brought in India by crossing the customs frontiers. When G
  the goods are lying in the bonded warehouses, they are
  deemed to have been kept outside the customs frontiers of the
   country and as stated by the learned senior counsel appearing
   for the appellant, the appellant was selling the goods from the
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     818      SUPREME COURT REPORTS                    [2012] 1 S.C.R.


 A duty free shops owned by it at Bengaluru International Airport
   before the said goods had crossed the customs frontiers.

          19. Thus, before the goods were imported in the country,
     they had been sold at the duty free shops of the appellant.
 B       20. In view of the aforestated factual position and in the
   light of the legal position stated hereinabove, it is very clear that
   no tax on the sale or purchase of goods can be imposed by
  any State when the transaction of sale or purchase takes place
  in the course of import of goods into or export of the goods out
C of the territory of India. Thus, if any transaction of sale or
  purchase takes place when the goods are being imported in
  India or they are being exported from India, no State can
  impose any tax thereon.

D        21. Section 5 of the Central Act deals with the transaction
     which is said to have taken place in the course of import or
     export. Relevant portion of Section 5 of the Central Act reads
     as under:

         "5(1) xxx                     xxx               xxx
E
               (2) A sale or purchase of goods shall be deemed to
         take place in the course of the import of the goods into
         the territory of India only if the sale or purchase either
         occasions such import or is effected by a transfer of
F        documents of title to the goods before goods have crossed
         the customs frontiers of India."

        22. Upon perusal of the aforestated provision of Section
  5 of the Central Act, it is clear that a sale or purchase of goods
  shall be deemed to take place in the course of import of the
G goods into the territory of India only if sale or purchase takes
  place before the goods have crossed the customs frontiers of
  India.

       23. Looking to the aforestated legal position, it cannot be
H disputed that the goods sold at the duty free shops, owned by
 HOTELASHOKA (INDIAN TOUR.DEV.COR.LTD.) v. ASSTI.              819
  COMMNR. OF COMMERCIAL TAXES [ANIL R. DAVE, J.]

the appellant, would be said to have been sold before the goods        A
crossed the customs frontiers of India, as it is not in dispute
that the duty free shops of the appellant situated at the
International Airport of Bengaluru are beyond the customs
frontiers of India i.e. they are not within the customs frontiers of
India.                                                                 B

     24. If this is the factual and legal position, in our opinion,
looking to the provisions of Article 286 of the Constitution, the
State of Karnataka has no right to tax any such transaction
which takes place at the duty free shops owned by the appellant        C
which are not within the customs frontiers of India.

     25. Looking to the aforestated simple and factual legal
position, in our opinion, it would not be much useful to discuss
the judgments which have been referred to by the learned
counsel appearing for the appellant. In our opinion, the legal         D
position is so clear that it was not necessary for the learned
counsel to refer to any judgment and merely by showing the
aforestated factual aspects and legal provisions to the
concerned authority, the appellant could have convinced the
concerned authority that the sale effected at the duty free shops      E
of the appellant could not have been taxed by the State of
Karnataka.

     26. Learned counsel appearing for the respondent-
Authorities had vehemently submitted that the appellant had not
exhausted equally efficacious alternative statutory remedy and,
                                                                       F
therefore, the Single Judge of the High Court had rightly not
entertained the petition filed by the appellant.

     27. According to them, the Division Bench had also rightly
dismissed the appeal for the same reason. According to them,           G
this Court also should not entertain this appeal.

    28. It is true that the appellant had rushed to the High Court
without exhausting equally efficacious alternative statutory
remedy. In our opinion, the learned Single Judge of the High
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     820     SUPREME COURT REPORTS                  [2012] 1 S.C.R.

A   Court was also right when he directed the appellant to move
    the statutory appellate authority. In normal circumstances, even
    we would have expressed the same opinion but looking to the
    fact that the special leave petition has already been admitted
    and the matter pertains to the assessment year 2004-2005, it
s   would not be in the interest of the justice to relegate the
    appellant to the statutory authorities especially when the legal
    position is very clear and the law is also in favour of the
    appellant.

       29. The learned counsel appearing for the respondent had
C submitted that the sale would not be subject to tax under the
  Act only if it occasions in the course of import but the
  transactions of sale, which are subject matter of this litigation
  had not taken place in the course of import and, therefore, they
  would not be exempted under the provisions of Section 5 of
D the Central Act. In our opinion, the aforestated submission
  cannot be sustained.

         30. They again submitted that 'in the course of import'
   means 'the transaction ought to have taken place beyond the
E territories of India and not within the geographical territory of
   India'. We do not agree with the said submission. When any
   transaction takes place outside the customs frontiers of India,
   the transaction would be said to have taken place outside India.
  Though the transaction might take place within India but
F technically, looking to the provisions of Section 2(11) of the
  Customs Act and Article 286 of the Constitution, the said
  transaction would be said to have taken place outside India. In
  other words, it cannot be said that the goods are imported into
  the territory of India till the goods or the documents of title to
G the goods are brought into India. Admittedly, in the instant case,
  the goods had not been brought into the customs frontiers of
  India before the transaction of sales had taken place and,
  therefore, in our opinion, the transactions had taken place
  beyond or outside the custom frontiers of India.

H       31. In our opinion, submissions with regard to sale not
 HOTELASHOKA (INDIAN TOUR.DEV.COR.LTD.) v. ASSTI.          821
  COMMNR. OF COMMERCIAL TAXES [ANIL R. DAVE, J.]

taking effect by transfer of documents of title to the goods are A
absolutely irrelevant. Transfer of documents of title to the goods
is one of the methods whereby delivery of the goods is effected.
Delivery may be physical also. In the instant case, at the duty
free shops, which are admittedly outside the customs frontiers
 of our country, the goods had been sold to the customers by B
 giving physical delivery. It is not disputed that the goods were
 sold by giving physical possession at the duty free shops to the
 customers. Simply because the sales had not been effected
 by transfer of documents of title to the goods and the sales were
 effected by giving physical possession of the goods to the         c
 customers, it would not mean that the sales were taxable under
 the Act. Thus, we do not agree with the aforestated submissions
 made by the learned counsel appearing for the Revenue.

      32. Looking to the aforestated clear and settled legal
 position, we allow the appeal and quash the order of               D
 assessment so far as the transactions which are the subject
 matter of this litigation are concerned. There shall be no order
 as to cost.

 CIVIL APPEAL NOs. 10404-10412 OF 2010                              E
      33. As issues involved in the aforestated appeals and in
 Civil Appeal No.2560 of 2010 are same, for the reasons
 recorded in the judgment rendered in Civil Appeal No. 2560
 of 2010, these appeals also stand allowed and the assessment
                                                                    F
 orders, so far as they pertain to the subject matter of these
 appeals are concerned, are quashed. There shall be no order
 as to costs.

 R.P.                                          Appeals allowed.