Point of Law – The petitioner is a private limited company engaged in the business of trading in petrochemicals, which is registered under the VAT Act, 2003 as well as Central Sales Tax Act, 1956. The petitioner enters into the high seas sale agreement with buyers and pursuant to such agreements; the bills of lading are endorsed in favour of the buyers. Such transactions being sales by transfer of document of title to the goods before crossing of customs frontiers qualify as sales in the course of import under Section 5(2) of the CST Act.

ORDER :

SONIA GOKANI, J.

1. Rule, returnable forthwith. Learned AGP, Mr.Soham Joshi waives service of notice of Rule for and on behalf of the respondent-State.

2. By way of the present petition under Article 226 of the Constitution of India the petitioner prays for quashing and setting aside the order dated 11.02.2021 passed by the Gujarat Value Added Tax Tribunal (‘the VAT Tribunal’ hereinafter) in Second Appeal No.35 of 2020 in the following factual background:

1.1 The petitioner is a private limited company engaged in the business of trading in petrochemicals, which is registered under the VAT Act, 2003 as well as Central Sales Tax Act, 1956. The petitioner enters into the high seas sale agreement with buyers and pursuant to such agreements, the bills of lading are endorsed in favour of the buyers. Such transactions being sales by transfer of document of title to the goods before crossing of customs frontiers qualify as sales in the course of import under Section 5(2) of the CST Act. The petitioner did not pay tax on such transactions and claimed the transactions to be sales in the course of import in the return filed under the VAT Act and CST Act.

1.2 The Assessing Officer allowed the exemption for high seas sale transaction in respect of which documents had already been submitted while the exemption in respect of which documents were pending had been rejected. The huge demand of tax was raised in assessment under the CST Act.

1.3 The petitioner has preferred the First Appeal challenging the Assessment Order before the Appellate Authority. The issue since was for verification of the documents, which could not be produced, the Joint Commissioner called for the report from the Assessing Officer vide its communication dated 30.08.2018. The representative authority produced a file of documents, according to the Assessing Officer, they were not relevant. The petitioner also made internal verification and found that its employee had erroneously submitted wrong set of documents before the Assessing Officer pursuant to the letter of the Joint Commissioner.

1.4 Another letter was addressed to the Assessing Officer to re-verify the documents. The assessment was completed and then the petitioner approached the Appellate Authority for re-verification because of the denial by the Assessing Authority, the Appellate Authority summarily dismissed the First Appeal on the ground of non-payment of pre–deposit.

1.5 The petitioner preferred Second Appeal before the VAT Tribunal for admission of Second Appeal and stay against the recovery of dues. Such verification had been directed by the Appellate Authority, which was refused on the ground that the assessment was concluded.

1.6 According to the petitioner, there is a recovery of Rs.45,57,510/- and of Rs.57,228/- on identical issue from the group of company of the petition namely M/s.Sanman Trade Impex Ltd. It is his grievance that 20% of the tax liability is demanded by way of the pre–deposit for admission of the appeal by the order dated 11.02.2021. For other assessment years, he has been able to duly furnish the evidences for the high seas sale transactions, which have also been accepted by the Assessing Officer. The petitioner, therefore, is before this Court seeking to challenge the impugned order dated 11.02.2021 with the following prayers:

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(A) This Hon’ble Court may be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ or order quashing and setting aside impugned order dated 11.02.2021 (annexed At Annexure A) passed by the learned Gujarat Value Added Tax Tribunal and the appeal may pleased to ordered to be heard without insistence of any further pre-deposit or security;

(B) In the laternative this Hon’ble Court may be pleased to quash and set aside the appeal orders as well as assessment order dated 30.03.2018 and the matter may please be remanded to the assessing authority for fresh assessment after verifying documents to be produced by th