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Report No. 30

100. Empresa Siderurgica case.- In Empresa Siderurgica v. Merced County, 337 US 154: 93 L Ed 1276 (1949), the same learned Judge (Justice Douglas) again explained when the process of exportation started:

"It is not enough that on the tax date there was a purpose and plan to export this property. Nor is it sufficient that in due course that plan was fully executed. Part of the plant (machinery that is taxed was dismantled but it had not been delivered to any carrier for export or otherwise started on its journey on the tax date. It might still have been diverted into the domestic market.

The fact that any such diversion would entail a breach of contract, that a part of the plant had already been started on its export journey, that an export license had been obtained and a letter of credit had been deposited in this country increases the expectation on the tax date that exportation of the entire plant would eventuate. But that prospect, no matter how bright, does not start the process of exportation. On the tax date the movement to foreign shores had neither started nor been committed.".

In another place of the judgment, the learned Judge observes:-

"Under that test it is not enough that there is an intent to export or a plan which contemplates exportation or an integrated series of events which will end with it.....It is the entrance of the export stream that marks the start of the process of exportation. Then there is certainty that the goods are headed for their foreign destination and will not be diverted to domestic use. Nothing less will suffice.".

101. The Supreme Court has quoted this passage in the Second Travancore case, [AIR 1953 SC 333 (337)] only to highlight the fact that a sale which takes place in the course of export, when the goods are actually on the high seas and therefore incapable of being diverted to domestic use attracts the application of Article 286(1)(b). On page 338 [AIR 1953 SC 333 (338)1. the learned Chief Justice observes:-

"Where the goods are transported pursuant to a contract of sale already concluded with a foreign buyer and the shipping documents have been sent to him, any further sale of such goods by the Indian seller is impossible.".



Section 5 of the Central Sales Tax Act, 1956 - Taxation by the States of Sales in the Course of Import Back




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