The petitioner's appeal against the Assessment Order under sec. 23(4) of the MVAT Act was dismissed by the Court on the grounds of the availability of an alternative remedy and the presence of disputed factual aspects pertaining to the terms of the contract, which cannot be adjudicated in a writ petition.

JUDGMENT

1. Rule. Learned A.G.P. for the respondents waive service. Rule is returnable forthwith.

2. The Assessment Order in this case for the period 1/4/2005 to 31/3/2006 was passed on 30/12/2015 by the Assessing Authority under sec. 23(4) of the Maharashtra Value Added Tax Act, 2002 (for short the MVAT Act). The petitioner filed an appeal against the said Assessment Order. The Appellate Authority passed an order remanding the matter back for a fresh assessment.

3. The petitioner is a works contractor and service provider mainly for ONGC platform at ONGC, Bombay High Site. According to the petitioner, the petitioner had provided the services of the production of water at ONGC platform. On that platform, the sea water i.e. salt water was converted into potable water. The machinery performing the said process belongs to ONGC. The petitioner had only provided the labour and the chartered ship on the higher basis. The petitioner had its own chartered ship and the possession and control of the ship always remained with the petitioner.

4. It is the case of the petitioner that these activities provided by the petitioner were duly served. The petitioner had purchased the raw material in Maharashtra State and execution of works contract on ONGC platform to ONGC on turnkey basis. According to the petitioner the transfer of property took place on the ONGC platform which was not the part of the State of Maharashtra. The State of Maharashtra had no jurisdiction to levy tax on the goods involved in the execution of work contract, executed on the ONGC platform.

5. The Assessing Officer passed an Assessment Order on 29/6/2019 rejecting the contention of the petitioner that the transfer of the property in this case took place on the ONGC platform which were not part of the State of Maharashtra. The Assessing Officer held that the work contract was executed between the ONGC and the petitioner and both were registered under the said MVAT Act. It is held that the continental self/exclusive economic zone/Mumbai High are comprised within the territory of India. The movement of goods from the State of Maharashtra to Mumbai High does not constitute the movement from one State to another State as no any other State is involved in this contract activities.

6. It is held that a sale by export involves a series of integrated activities commencing from the agreement of sale with foreign buyer and ending with the delivery of such goods to a common carrier for transport out of the country by land or sea. It is held that in case of export, there is always a foreign buyer to whom the goods are ultimately sent. In this case the buyer did not export the goods to foreign country but purchased them for execution of works contract on ONGC platform at Bombay High. It is held that in case of export, goods must have a foreign destination where they can be said to be imported. In this case, the goods are not exported. It has no destination where it can be said to be imported. The delivery of the goods had been taken by the ONGC at Nhava Sheva which is part of the State of Maharashtra. Thus the sales/works contract is completely within the territory of the taxing State i.e. Maharashtra.

7. It is held by the Assessing Officer that in this case the movement of goods from the State of Maharashtra to Mumbai High is (1) not sale in course of export, (2) the sale is not occasioned by movement of goods from one State to another State hence it is not Interstate sale and (3) in the absence of the foreign buyer to whom the goods were ultimately sent, export is not allowable. The Assessing Officer accordingly came to the conclusion that the State would be entitled to treat the receipts as a local works contract receipts and levy tax as per provisions under MVAT Act, 2002.

8. The Assessing Officer also gave various factual findings based on the documents produced by the petitioner and held that the total VAT payable came to Rs.1, 77, 47, 239.00 and imposed penalty under sec. 29(2A