Commissioner of Customs Vs MMTC Limited (CESTAT Hyderabad)
We find no evidence in this case to say that the transaction between M/s NTPC and the respondent is a high sea sales transaction. It is now well settled legal position that high sea sales are those sales which take place before the goods cross the Customs frontiers. Such sales can take place either while the goods are on high seas or in the Port or in the custom bonded warehouses before they are cleared by the Customs. Such transactions are not chargeable to VAT by the State Government or CST because they are deemed to be transactions in the course of International trade. In the present case, the bill of entry has been filed by the respondent and the goods were cleared by them. Thereafter, they were sold to M/s NTPC. Ld. Counsel for the respondent also submits that they have paid the appropriate amount of CST on the coal so imported. To sum up, we do not find any evidence on record to show that MMTC is the canalising agency for import of coal as per the EXIM Policy during the relevant period or that the coal was sold in High Sea Sales basis. The agreement between the MMTC and NTPC is for supply of coal as NTPC requires it and MMTC imports and supplies it. The sale of goods was not a high sea sales which was affected after clearing from the Customs. Otherwise, NTPC, the buyer would have filed the Bill of Entry and cleared the goods. The mere fact that the bids for import were finalised by the respondent (MMTC) after approval of NTPC, would not change the nature of transaction. There is no evidence that there is any privity of contract between the overseas supplier of coal and M/s NTPC. It is true that the definition of “Importer” under Section 2 includes the owner of the goods or anyone who holds himself out to be the importer but in this case no evidence is brought out that M/s NTPC are either the owner or have held themselves out to be the importer. This contention of the Revenue is completely baseless.
