JUDGMENT Rajes Kumar, J.
1. This is a revision filed by the applicant under section 11 of the U.P. Sales Tax Act, 1948, (hereinafter referred as "Act") against the order of Tribunal dated September 18, 1990 relating to the assessment year 1981-82.
2. Dealer was carrying on business of footwears. Footwear was liable to tax at the point of sale to consumer. Dealer purchased foot-wear against form III-A and thereafter sold in the course of inter-State sale to the party, M/s. Akai Impex Pvt. Ltd., Bombay, who had exported the same. In respect of the aforesaid transaction, assessment order was passed under U.P. Sales Tax Act. No tax was levied under section 3AAAA and under the Central Sales Tax Act, 1956, exemption was granted treating the transaction as deemed export under section 5(3) of the Central Sales Tax Act, 1956. The Deputy Commissioner (Executive) Sales Tax, Meerut, initiated the proceeding under section 10-B of the Act on the ground that the purchase of footwears against from III-A, which was sent outside the State of U.P. for export, was liable to tax under section 3-AAAA. Dealer filed the reply which was not accepted and tax under section 3-AAAA was levied on the turnover of Rs. 53,38,482. The applicant filed appeal before Tribunal which was rejected. Being aggrieved by the order of Tribunal the present revision has been filed.
3. Tribunal has upheld that the levy under section 3-AAAA on the ground that the exemption under section 3-AAAA was available only on the situation when the sale had been made in the same form and condition within the State of U.P. or in the course of inter-State sale. According to the Tribunal, the exemption was not available in case of export.
4. I have heard Sri Bharat Ji Agrawal, Senior Advocate and Sri M.R. Jaisawal, learned Standing Counsel.
5. Learned counsel for the applicant contended that section 3-AAAA which was considered by the Tribunal, subsequently amended by section 6 of U.P. Act No. 31 of 1995 with retrospective effect with effect from April 1, 1974 and the amended section 3-AAAA also provide exemption to the export and hence in view of the amended section, the tax levied under section 3-AAAA is not justified. Section 3-AAAA has amended by section 6 of U.P. Act No. 31 of 1995 with effect from April 1, 1974 reads as follows :
Section 3-AAAA "3-AAAA. Liability to tax on purchase of goods in certain circumstances.-Subject to the provision of section 3, every dealer who purchases any goods liable to tax at the point of sale to consumer,-
(a) from any registered dealer in circumstances in which no tax is payable by such registered dealer, shall be liable to pay tax on the purchase price of such goods at the same rate at which, but for such circumstances, tax would have been payable on the sale of such goods ;
(b) from any person other than a registered dealer whether or not tax is payable by such person, shall be liable to pay tax on the purchase price of such goods at the same rate at which tax is payable on the sale of such goods :
Provided that no tax shall be leviable on the purchase price of such goods in the circumstances mentioned in clauses (a) and (b), if-
(i) such goods purchased from a registered dealer have already been subjected to tax or may be subjected to tax under section 3-AAA;
(ii) tax has already been paid in respect of such goods purchased from any person other than a registered dealer ;
(iii) the purchasing dealer resells such goods within the State or in the course of inter-State trade or commerce of exports out of the territory of India, in the same form and condition in which he had purchased thorn ;
(iv) such goods are liable to be exempted under section 4-A of this Act.
Explanation.-For the purpose of this section and of section 3-AAA the sale of-
(i)ginned cotton after ginning raw cotton purchased as aforesaid ; or
(ii) dressed hides and skins or tanned leather after dressing or tanning raw hides and skins purchased aforesaid ; or
(iii) rice during the period commencing on September 2, 1976 and ending with April 30, 1977, after hulling paddy purchased as aforesaid ; shall be deemed to be in the same form and condition."
6. So far as the fact is concerned it is not disputed that footwears were sold to Bombay party which was purchased for export and even according to the Tribunal it was deemed export under section 5(3) of the Central Sales Tax Act. Proviso (iii) of section 3-AAAA exempts from levy of tax under section 3-AAAA in case goods are sold within the State or in the course of inter-State trade or commerce or exports out of the territory of India, in the same form and condition in which he had purchased them.
7. In the present case, proviso (iii) to section 3-AAAA as amended by U.P. Act No. 31 of 1995 with effect from April 1, 1974 clearly applies to the fact of the case and thus tax levied under section 3-AAAA is not justified. Tribunal upheld the levy on the basis of section 3-AAAA which stood at that time but now has been substituted by new section 3-AAAA, referred above by U.P. Act No. 31 of 1995 with retrospective effect from April 1, 1974 as a result, old section does not exist and only new section exist.
8. In the result, the revision is allowed and the order dated September 18, 1990 is set aside. Tribunal is directed to pass the order under section 11(8) of the Act.