SWAMIKKANNU, J.


This is a writ petition praying for the issue of a writ of certiorari to call for the records of assessment in Reference No. 44653/78-79 for the assessment year 1978-79 and to quash the order of the respondent passed therein on 30th January, 1982.


2. The petitioner's case, as borne out from the contents of the affidavit filed in support of the writ petition is : The petitioner, a partnership firm dealing in textiles, handicrafts, silver jewellery, readymade garments, etc., is a regular assessee on the file of the respondent and is regularly assessed to sales tax in respect of the many years past. The assessment is being made on the basis of the annual turnover shown by the petitioner in form A-1. Provisional assessment is made for the current year on the basis of the turnover determined in the previous year. The petitioner effects sales locally as well as in the course of export. The items dealt with by the petitioner being handicrafts, have export potential and hence substantial sales are effected thereof to foreign tourists visiting India. These sales constitute export sales in terms of the import policy issued by the Government of India. Under the import policy of the Government of India, announced from time to time, sales to foreign tourists of specified items are deemed to be exports and will qualify for grant of import replenishment under the import policy. Para 122 of the Import Policy of the Government of India (Chapter 17) provides that certain exports qualify for the grant of import replenishment. Under para 124, the following types of "deemed exports" will also qualify, namely, sales to foreign tourists of the items specified in para 150. Para 150, in turn, refers, as deemed exports, to the following, namely, sales to foreign tourists in respect of gem and jewellery, handicrafts, leather goods (viz., footwear, handbags, belts, purses, etc.), Carpets, rugs and druggets, cotton sarees, cotton dress materials, cotton table linen, bedspreads and covers, scarves, shawls and cotton furnishing material, readymade garments and silk fabrics and made up articles including furnishing materials, will qualify for import replenishment under the import policy of the Government for registered exporters. The above policy of the Government has been in force for the past years and has been consitently followed in the subsequent years. The items dealt with and sold by the petitioner are covered by para 150 referred to above. The sales tax authorities, under the Tamil Nadu General Sales Tax Act (hereinafter referred to as the State Act) had, in the course of the assessment of the petitioner for the earlier years, accepted the above import policy enunciated by the Government of India and had accepted the sales of the items mentioned above to foreign tourists within the country as exports eligible for exemption under the State Act. Accordingly, the sales turnover petitioner in respect of the abovesaid items was accepted as turnover of sales in the course of export and exemption in respect thereof had been granted.


3. Mr. R. Lokapriya, the learned Government Advocate (Commercial Taxes) submits that it is contended in the counter-affidavit filed by the respondent that the dealers have not effected any direct export sales but they have effected sales to foreign tourists on payment of foreign currency. It is true that the import policy of the Government of India, announced from time to time provides that sales to foreign tourists of specified items are deemed to be export and will qualify for the grant of import replenishment under the import policy. According to section 17 of the State Act, the Government may, by notification issued (whether prospectively Or retrospectively), make an exemption or reduction in rate, in respect of any tax payable under this Act. If any restriction or condition notified under section 17 is contravened or is not observed by a dealer, the sales or purchases of such dealer may, with effect from the Commencement of the year in which such contravention or non-observance took place will be assessed to tax or taxes under the appropriate provision of this Act. In this case, the Government of Tamil Nadu have not given any specific exemption under section 17 of the Act, that sales to foreign tourists are deemed to be export sales or sales in the course of export. By Notification No. 111 (No. 119) of 1963 dated 31st January, 1963 (under Madras Act 1 of 1959) have ordered that sales of goods by any dealer to bona fide foreign tourists are exempt from the tax payable under this Act. Subsequently, the above notification was cancelled by notification in G.O.P. No. 2077, Revenue, dated 25th June, 1963. Thus, the sales to foreign tourists by the dealers are not deemed to be in the course of export sales.


4. The point for determination in this writ petition is whether the relief prayed for by the petitioner can be granted or not.


5. It is relevant to note that there is no pre-existing agreement or order to sell specific goods to foreign buyers. Further sales are also not in the course of export as laid down under section 5(3) of the Central Sales Tax Act. The sales to foreigen tourists by the petitioner cannot be treated as export sales or sales in the course of export. According to section 16(1)(a) of the State Act, where, for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax, the assessing authority may, subject to the provision of sub-section (2), at any time within a period of five years from the expiry of the year to which the tax relates, determine to the best of his judgment the turnover which has escaped assessment and assess the tax payable on such turnover after holding due enquiry and after giving the dealer an opportunity to show cause against such assessment. The reassessment now made is based on the provisions of section 16(1) of the State Act, which provisions are not in any way in violation of the Constitution of India as alleged by the petitioner. It is against the revised assessment under section 16(1) of the Act, the present writ petition has been filed. An appeal lies as against the assessment to the Appellate Assistant Commissioner. This remedy has not been exhausted by the petitioner. Under these circumstances, this Court is not inclined to give any definite finding with respect to the several points raised by the petitioner, but only permits the petitioner to prefer an appeal before the appellate authority. The appellate authority, on receipt of the appeal,

will take into consideration all the points raised by the petitioner and dispose of the appeal in accordance with law. Two months' time is granted to the petitioner to move the appellate authority by way of appeal. Though six years have elapsed since the institution of the writ petition, yet this Court is of opinion that a further opportunity should be granted to the petitioner to agitate the points raised herein by way of appeal to the appellate authority. The appellate authority shall go through the entire contentions that may be raised before it by the petitioner and deal with the same and dispose of the appeal. With these observations, the writ petition is dismissed. There will be no order as to costs.Writ petition dismissed.