JUDGMENT V. Gopala Gowda, J. - Though this matter is listed today for dictating judgment we have heard Smt. Geetha Menon, learned Government Advocate, with reference to the additional documents produced along with a memo dated June 8, 2009 by the learned counsel for the appellant and the decision of the Supreme Court reported in the case of K. Gopinathan Nair v. State of Kerala reported in [1997] 105 STC 580; AIR 1997 SC 1925 relied upon by the learned Additional Government Advocate in justification of both the impugned orders passed by the learned single judge and assessing officer. The documents produced are : "1. A xerox copy of the sample of the purchase order placed by ITDC on the foreign buyer, namely, M/s. UDV, M/s. DIAGEO Amsterdam, Amsterdam, Netherland. 2. A xerox copy of the office order of ITDC with respect to procurement of goods from foreign country for sale at duty-free shops. 3. Shipping document and invoice raised by M/s. DIAGEO Amsterdam, Amsterdam, Netherland on ITDC." This appeal is filed by Hotel Ashoka questioning the correctness of the order dated February 11, 2009, passed in Writ Petition No. 10989 of 2008 (T-CST) (Hotel Ashoka v. Assistant Commissioner of Commercial Taxes) [2010] 33 VST 33 (Karn) urging various grounds. Mr. Randhir Chawla, learned counsel appearing for Sri M. N. Shankare Gowda, on behalf of the appellant contended that the learned single judge erred in directing the appellant to avail of alternative remedy of appeal and the same is bad in law. Further, the learned single judge failed to take into consideration the admitted facts required to be examined in view of the provisions of article 286(1)(b) of the Constitution of India read with section 2(ab) of the Central Sales Tax Act, 1956. He submitted that the sales effected from the duty-free shop, which is admittedly located beyond the customs station at Bengaluru International Airport, are not covered by the charging section under the KST Act and not liable to tax under the Central Act. Therefore, the learned single judge should have decided the question of law on merits instead of dismissing the writ petition with a direction to the appellant to avail of the alternative remedy. Therefore, the learned single judge should have decided the question of law on merits instead of dismissing the writ petition with a direction to the appellant to avail of the alternative remedy. The learned counsel contended that the learned single judge has failed to note that the order passed by the assessing authority is without jurisdiction as the transactions could not be liable to tax unless they took place beyond the territorial jurisdiction of India. In the instant case, the appellant did not admit that it was beyond the customs barriers of India as per the provisions of section 2(ab) of CST Act. Therefore, the assessing officer had no jurisdiction to levy the sales tax as the transactions were admittedly beyond the customs frontiers of India. Therefore, the writ petition should have been disposed of on merits by the learned single judge instead of directing the appellant to avail of alternative remedy of appeal. The legal issues required to be decided by the learned single judge are, whether the sales made are in the course of import or export and the assessment order passed is within the jurisdiction of the assessing officer ? Since, the learned single judge failed to consider these legal aspects, the order is bad in law and liable to be set aside. Further, learned single judge failed to notice that the assessment order passed by the assessing officer is without jurisdiction under the provisions of the Act and therefore, it is a nullity in the eye of law. Hence, there was no need for the learned single judge to examine the facts and record the findings. The learned counsel for the appellant placed reliance on the decisions of the Madras High Court and the Calcutta High Court and the judgment of the Supreme Court wherein section 5(2) fell for consideration and it has been interpreted that the sale of goods within the customs frontiers in India, is exempted from the sales tax in view of section 5(2) of the CST Act. The learned counsel submitted that the documents are produced by the appellant - assessee before the assessing officer to show that the provisions of section 5(2) of the Act are attracted to the facts of the case. Therefore, the assessing officer had no jurisdiction to pass the assessment order. The learned counsel submitted that the documents are produced by the appellant - assessee before the assessing officer to show that the provisions of section 5(2) of the Act are attracted to the facts of the case. Therefore, the assessing officer had no jurisdiction to pass the assessment order. He also placed reliance upon the decisions of the Supreme Court in the case of State of H.P. v. Gujarat Ambuja Cement Ltd. reported in [2005] 142 STC 1 and also in the case of Kiran Spinning Mills v. Collector of Customs reported in [1999] 113 ELT 753 to contend that additional customs duty is not leviable. The aforesaid decisions have not been considered by the learned single judge and therefore, the impugned order is bad in law. Another contention urged by the learned counsel on behalf of the appellant is that the assessment order is a nullity in the eye of law. The further contention urged is that it is purely a question of law that arose for consideration before the learned single judge and the same should have been examined in detail. The learned Additional Government Advocate Smt. Geetha Menon, placed reliance upon section 5(2) of the Act with regard to the import of goods within the custom frontiers of India by the appellant and the goods were stored in the bonded warehouse and sold in duty-fee shops situated at International Airport, Devanahalli, Bangalore. According to her, the sales are not in conformity with the statutory provisions of the Act and the law laid down by the apex court in the case of K. Gopinathan Nair v. State of Kerala reported in [1997] 105 STC 580; AIR 1997 SC 1925 . In the aforesaid decision, guidelines have been laid down with reference to section 5(2) of the CST Act at paragraph 12 after analysing the various decisions of the Constitution Bench of the Supreme Court. The learned AGA further contended that the order is passed by the assessing officer after giving an opportunity to the assessee and the same is subject to appeal. Therefore, the learned single judge rightly dismissed the writ petition giving liberty to the appellant to avail of alternative remedy of filing an appeal. She submitted that the impugned order does not warrant interference in view of the decision of the Supreme Court referred to supra. Therefore, the learned single judge rightly dismissed the writ petition giving liberty to the appellant to avail of alternative remedy of filing an appeal. She submitted that the impugned order does not warrant interference in view of the decision of the Supreme Court referred to supra. The learned single judge rightly declined to exercise the discretionary power and directed the appellant to avail of alternative remedy which is perfectly justified in the facts and circumstances of the case. We have carefully examined the rival legal contentions for the limited purpose to find out whether the learned single judge was right in dismissing the writ petition directing the appellant to avail of the alternative remedy. The same has to be answered against the appellant for the following reasons : (1) Section 5(2) of the Central Sales Tax Act, 1956 fell for consideration before the Constitution Bench of the apex court in the following decisions : (1) Coffee Board, Bangalore v. Joint Commercial Tax Officer, Madras reported in [1970] 25 STC 528 (SC); AIR 1971 SC 870 . (2) K.G. Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes, Madras Division, Madras reported in [1966] 17 STC 473 (SC); AIR 1966 SC 1216 . (3) Binani Bros. (P.) Ltd. v. Union of India reported in [1974] 33 STC 254 (SC); AIR 1974 SC 1510 . (4) Mod. Serajuddin v. State of Orissa reported in [1975] 36 STC 136 (SC); AIR 1975 SC 1564 . The apex court examined the constitutional provisions of article 286 of the Constitution and sections 5 and 2(ab) of the Central Sales Tax Act at paragraph 12, in the decision referred to in the case of K. Gopinathan Nair v. State of Kerala [1997] 105 STC 580 (SC); AIR 1997 SC 1925 . The law is laid down as under : "In the light of the aforesaid settled legal position emerging from the Constitution Bench decisions of this court the following propositions clearly get projected for deciding whether the concerned sale or purchase of goods can be deemed to take place in the course of import as laid down by section 5(2) of the Central Sales Tax Act, 1956 : (1) The sale or purchase, as the case may be, must actually take place. (2) Such sale or purchase in India must itself occasion such import and not vice versa, i.e., import should not occasion such sale. (3) The goods must have entered the import stream when they are subjected to sale or purchase. (4) The import of the concerned goods must be effected as a direct result of the concerned sale or purchase transaction. (5) The course of import can be taken to have continued till the imported goods reach the local users only if the import has commenced through the agreement between foreign exporter and an intermediary who does not act on his own in the transaction with the foreign exporter and who in his turn does not sell as principal the imported goods to the local users. (6) There must be either a single sale which itself causes the import or is in the progress or process of import or though there may appear to be two sale transactions they are so integrally interconnected that they almost resemble one transaction so that the movement of goods from a foreign country to India can be ascribed to such a composite well integrated transaction consisting of two transactions dovetailing into each other. (7) A sale or purchase can be treated to be in the course of import if there is a direct privity of contract between the Indian importer and the foreign exporter and the intermediary through which such import is effected merely acts as an agent or a contractor for and on behalf of Indian importer. (8) The transaction in substance must be such that the canalising agency or the intermediary agency through which the imports are effected into India so as to reach the ultimate local users appears only as a mere name lender through whom it is the local importer-cum-local user who masquerades." We have examined the documents produced by the appellant for the limited purpose to find out whether the appellant is entitled to the exemption claimed under section 5(2) of the Act and not liable to pay tax under the Act. After careful examination of the facts of the case and the guidelines laid down by the apex court we are of the view that the learned single judge is perfectly justified in holding that the order passed by the assessing officer is not required to be interfered with and giving liberty to avail of the alternative remedy of filing an appeal against the order of assessment before the appellate authority. In our considered view the said conclusion arrived at by the learned single judge is legal and valid. The decisions of various High Courts and judgments of the Supreme Court relied upon by the learned counsel for the appellant referred to supra, do not apply to the facts of this case to accept the legal contention urged on behalf of the appellant to hold that the assessment order is without jurisdiction and authority under the provisions of the Act. On the other hand, the judgment relied upon by the learned Additional Government Advocate is applicable to the facts and situation to hold that the assessing officer had the jurisdiction to pass assessment order against the appellant. Therefore, the order passed by the learned single judge does not call for interference in this appeal. The writ appeal is being devoid of merit and liable to be dismissed. Accordingly, the appeal is dismissed.