I. Mahanty, J.
1. In the writ application the petitioner, M/s. Rajarishi Exports Ltd., has sought to challenge the order dated January 29, 1994 passed by the Sales Tax Officer, Cuttack III, Jaipur Road rejecting the petitioner's application for refund on the ground that the purchase made by the petitioner from M/s. Tata Iron and Steel Company Ltd. (in short, 'TISCO') on payment of tax cannot be treated as sale in the course of export and as such it is not exempted from tax.
2. Mr. Ray, learned Counsel appearing on behalf of the petitioner, submitted that the petitioner had entered into a contract with a foreign buyer, namely, M/s. Nissho Ihsai Company of Tokyo, for sale of 50,000 M. T. of high grade Indian chrome ore. It is further submitted that pursuant to the agreement entered into between the petitioner and the foreign buyer, the petitioner also entered into a contract with TISCO for purchase of high grade chrome ore and in obtaining the said material from TISCO, the petitioner supplied it to its foreign buyer and the opposite parties realized a sum of Rs. 12,86,959.14 towards sales tax on the sale and purchase of chrome ore by the petitioner from TISCO. Thereafter it appears that on December 30, 1977 the petitioner made an application before the Sales Tax Officer, Cut-tack III Circle, Jaipur Road for registration of the firm under the OST Act, 1947 but the Sales Tax Officer refused to grant registration to the petitioner on the ground that the petitioner had declared that it intended only to enter into export transaction to Japan.
3. It is further submitted that while the Sales Tax Officer completed assessment of the petitioner as an unregistered dealer under Section 12(5) of the OST Act for the periods 1973-74 and 1974-75, he also raised a demand and imposed penalty under Section 12(5) of the OST Act for non-registration. Being aggrieved by the same, the petitioner-company filed an appeal before the Assistant Commissioner of Sales Tax, Cuttack Range, Cuttack and the appeal was ultimately allowed by annulling the assessment order and the first appellate authority came to a conclusion that the sale of chrome by the petitioner to its foreign buyer was an export sale and as such it was exempted by virtue of article 286(1) (b) of the Constitution of India and Section 5 of the CST Act and further directed for refund of tax paid by the petitioner.
4. The petitioner thereafter made an application before the Commissioner of Sales Tax seeking refund of the sales tax paid by it to TISCO on the purchase of chrome. Upon the same being rejected, the petitioner approached this Court in OJC No. 607 of 1978, which was disposed of with a direction to the sales tax authorities to dispose of the refund application of the petitioner within a period of six months. Apparently this refund application was once again rejected by both the Sales Tax Officer as well as by the revisional authority, whereafter the petitioner also again approached this Court in OJC No. 761 of 1989 and the same (2nd writ application) was disposed of by holding that the order of rejection of the refund application of the petitioner was not in accordance with law and directed the sales tax authority to consider the refund application afresh as per the provisions of law. After disposal of the second refund application as noted hereinabove, once again notice was issued to the petitioner to show cause as to why refund application should not be rejected. The petitioner submitted its show-cause reply and on consideration of the same the sales tax authority by order dated January 29, 1994 once again rejected the petitioner's application for refund. Hence the present writ application (3rd writ petition) has been filed challenging the aforesaid order.
5. Although we have narrated briefly the background facts of the case, a query was made to the learned Counsel for the petitioner as to whether the petitioner had ever challenged or questioned the order of the Sales Tax Officer, Cuttack III Circle dated June 4, 1973, refusing to grant registration to the petitioner firm. Learned Counsel fairly submitted in the negative and admitted that the said order was never challenged. Apart from the above, it becomes important to take note of the fact that in the case at hand, two distinct transactions are involved. The first being purchase of chrome ore by the petitioner-firm, namely, M/s. Rajarishi Exports Ltd., from TISCO and the second being the sale of chrome by the petitioner to its foreign buyer, namely, M/s. Nissho Ihsai Co. Ltd., Tokyo.
6. It is important to take note of the fact that while the petitioner's claim was that it had entered into a contract to export chrome to its foreign buyer and to meet such requirement, it had entered into a contract with TISCO (a copy of which has been annexed as annexure 2 to the writ petition). On a perusal of the said contract, it is important to note here that there is no reference whatsoever to any pre-existing export contract which the petitioner may have had with the foreign buyer prior to it entering into an agreement with the M/s. TISCO and on the contrary in clause V thereof which relates to price Rs. 140 (rupees one hundred forty) per ton, it is noted that sales tax as may be applicable at the time of delivery shall be payable. Further in terms of clause VII relating a delivery/weighment it is to be noted that, 'delivery of the materials' would be effected at the mines site of TISCO in the State of Orissa.
7. Therefore, the sale by TISCO to M/s. Rajarishi Exports was clearly an intra-State sale and the petitioner apart from paying for the value of the chrome ore, also made payment of Orissa sales tax thereon, without any demur and that too in its capacity as an unregistered dealer since the petitioner's registration application had been rejected by then and no challenge to the same was ever made by the petitioner.
8. The second part of the transaction relates to sale of chrome ore by the petitioner to its foreign buyer in Japan. This part of the transaction has been accepted as an export transaction by the first appellate authority, but this order cannot form the basis or foundation for a subsequent claim of refund arising out of the first transaction, i.e., between the petitioner namely, M/s. Rajarishi Exports Ltd. and TISCO.
9. In the facts of the present case, it is clear that while M/s. Rajarishi Exports Ltd., may have purchased the chrome ore for meeting its export obligation to its foreign buyer, the same is not an export transaction and therefore the said transaction, cannot be treated as a transaction exempted from tax under Section 5 of the CST Act, as it then was. It is also important to note here that, Sub-section (3) of Section 5 of the CST Act covering a penultimate transaction prior to export, came to the statute book by way of amendment with effect from April 1, 1976, while the transaction on the basis of which refund is claimed is for the transactions effected for the period from December 31, 1972 to March 31, 1973, 1973-74 and 1974-75. Therefore clearly since the period of such transaction being prior to the insertion of Sub-section (3) of Section 5 of the CST Act, neither benefit thereunder can be claimed nor granted to the petitioner since the amendment was not retrospective but prospective in its application.
10. In the light of the aforesaid findings arrived at by us, we find no merit in the claim of the petitioner made in this writ application and hence, the writ petition stands dismissed, but in the circumstances without costs.
B.S. Chauhan, C.J.
11. I agree.