* THE HON’BLE SRI GODA RAGHURAM AND * THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + W.P.Nos.8258, 9400, 9414, 9448 and 9442 OF 2009 % Dated 28-04-2011 # M/s. Bharat Electronics Limited, P.B. No.26, Ravindranath Tagore Road, Machilipatnam - 521 001, Andhra Pradesh, Rep., by its General Manager, Vijay Gundannavar, S/o Ramachandra Gundannavar, aged 55 years, R/o Machilipatnam. …. Petitioner Vs. $ The Deputy Commissoienr (CT), NO.II Division, Vijayawada and another. …. Respondents ! Counsel for the Petitioners: Sri S. Ravi ^ Counsel for respondents : Sri P. Balaji Verma, Learned Special Standing Counsel for commercial taxes <GIST: > HEAD NOTE: ? Citations: [1] (1960) Vol.11 STC 655 2 (2004) Vol. 134 STC 473 3 (1983) Vol. 53 STC 88 4 (1992) 1 SCC 534 5 (1999) Vol. 113 STC 169 6 (1996) 102 STC 345 (AP) 7 (1985) 60 STC 301 8 (1976) 38 STC 475 9 [1958] 9 STC 353 10 1993(88) STC 374 11 (1979) 43 S.T.C. 457 12 (2003) 4 SCC 557 13 (2005) 6 SCC 321 14 (1980) 4 SCC 379 15 ADMINISTRATIVE LAW : NINTH EDITION : H.W.R. WADE & C.F.FORSYTH 16 ADMINISTRATIVE LAW : 4TH EDITION : PETER LEYLAND & TERRY WOODS 17 Judicial Review Of Administrative Action : 5TH EDN : DE DMITH, WOOLF & JOWELL 18 AIR 1980 SC 1157 = (1980) 3 SCC 1 19 (2007) 8 SCC 559 20 AIR 1959 SC 492 21 (2007) 1 SCC 732 THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.Nos.8258, 9400, 9414, 9448 and 9442 OF 2009 COMMON ORDER: (Per Hon’ble Sri Justice Ramesh Ranganathan) In these writ petitions, filed by Bharat Electronics Limited, Machilipatnam unit, the orders under challenge are the revisional orders passed by the first respondent under the Central Sales Tax Act, 1956 (CST Act). W.P.No.8258 of 2009 relates to the assessment year 2001-02; W.P.No.9400 of 2009 to the assessment year 2002-03; W.P.No.9414 of 2009 to the assessment year 2003-04; W.P.No.9448 of 2009 to the assessment year 2004-05; and W.P.No.9442 of 2009 to the assessment year 2005-06. The facts in W.P.No.9442 of 2009 (relating to the assessment year 2005-06) may be taken as representing the facts in this batch of Writ Petitions. The petitioner, a Central Government public sector undertaking engaged in the manufacture and sale of defence and scientific goods, has several units spread all over the country i.e., Bangalore, Pune, Chennai, Kotdwara, Panchkula, Navi Mumbai and Machilipatnam. It is a dealer registered under the CST Act. At its Machilipatnam unit, the petitioner manufactures night vision devises i.e., Hi-tech Electro Optic equipment, hand-held thermal imager, night vision goggles and binoculars, night scopes and integrated observation equipments etc. The goods manufactured in the Machilipatnam unit are transferred to the Panchkula, Pune, Chennai and Bangalore units of the petitioner company. It is the petitioner’s case that these goods are not sold by the Machilipatnam unit but are only incorporated in the equipment manufactured at the other units, and are eventually sold therefrom to the end customers; and the respective units, which incorporate the components manufactured and transferred by the Machilipatnam unit, pay sales tax on the price of finished goods including the cost of components manufactured and supplied to them by the Machililpatnam unit. The 2nd respondent passed an order of assessment, for the year 2005-06, on 8.4.2008 exempting the turnover, representing such stock transfers, from levy of tax under the CST Act. The 1st respondent issued show cause notice dated 6.3.2009 proposing to tax the turnover of Rs.40,28,07,225/-, (which the petitioner had claimed to be the stock transferred from its Machilipatnam unit to other units of the petitioner company located outside the state of A.P), on the ground that they were inter-state sales from Andhra Pradesh to other States. The petitioner submitted a detailed reply on 28.3.2009 contending that the transactions were stock transfers and not inter-state sales. The 1st respondent passed the revisional order dated 16.4.2009 bringing the said turnover to tax holding that they were inter-state sales. Consequent to the revisional order of the 1st respondent dated 16.4.2009, the 2nd respondent issued a revised assessment order dated 20.4.2009 demanding tax of Rs.4,86,36,847/-. Sri S. Ravi, Learned Senior Counsel appearing on behalf of the petitioner, would submit that the goods manufactured by the Machilipatnam unit, and sent to other units of the petitioner company located outside the State of A.P, were components such as hi-tech electro-optic equipment, hand-held thermal imager, night vision goggles and binoculars, night scopes and integrated observation equipments etc., which form part of a larger machinery/unit manufactured by the units of the petitioner company situated outside the State of Andhra Pradesh; the Machilipatnam unit did not enter into any contract with the Indian Defence Services/Para-Military forces; the units, where the final goods were manufactured, had entered into such contracts, and had paid tax on the sales effected by them; transfer of goods by the Machilipatnam unit, to other units of the petitioner company located outside the State, did not constitute “sale” as the petitioner company, a distinct legal entity, cannot be said to have sold goods to itself; movement of goods from within the State, to units situated outside the State, is not an incident of the contract of sale entered into between the unit located outside the State with the eventual buyer; the goods transferred from the Machilipatnam unit to units outside the State, and the goods sold by units situated outside the State to its buyers, were not the same goods; they did not constitute “inter-state sale”; in the absence of details being furnished in the show cause notice, regarding the defects in the F- Forms submitted by the petitioner, the revisional authority must be held to have denied the petitioner an effective opportunity of being heard; and, even if there were defects, the petitioner ought to have been permitted to rectify the defects within a reasonable period, and resubmit the F-Forms. Learned Senior Counsel would rely on Tata Iron and Steel Co. Limited, Bombay v. S.R. Sarkar[1]; Ashok Leyland Ltd. v. State of Tamil Nadu[2]; Flowmore Private Limited v. Commissioner of Sales Tax[3]; Smt. Shrisht Dhawan v. M/s. Shaw Brothers[4]; Kerala State Small Industries Development and Employment Corporation Ltd. v. State of Tamil Nadu[5] and Bharat Heavy Electricals Ltd. v. State of Andhra Pradesh[6]. Sri P. Balaji Verma, Learned Special Standing Counsel for commercial taxes, would submit that the goods transferred by the Machilipatnam unit, to other units of the petitioner company in other States, was pursuant to contracts or agreements entered into with the Indian Defence Services/Para Military forces; the goods received on stock transfer by units of the petitioner in other States were utilized to fulfil the agreements entered into with such customers; in all cases the goods transferred by the petitioner were essentially meant to be sold to pre-identified customers through the petitioner’s other units; since the goods sent to the petitioner’s units in other States were clearly earmarked for a particular contract or a customer, and could neither be retained nor diverted by the units in other States, it amounted to inter-state sales; the movement of goods from within the State to another is an incident of the contract of sale in the course of inter-state trade falling under Section 3(a) of the CST Act; it is enough if the movement is pursuant to, and incidental to, the contract of sale; and the invoices raised by the Machilipatnam unit of the petitioner, on the stock transferred to units in other States, consisted of orders placed by units of other States based on the purchase orders placed by the ultimate buyer on the unit through which the order was received by the petitioner’s Machilipatnam unit. Learned Special Standing Counsel would rely on Sahney Steel and Press Works Ltd v. Commercial Tax Officer[7]; English Electric Company of India Ltd. v. The Deputy Commercial Tax Officer[8]; and Bharat Heavy Electricals Ltd.6. In their reply to the revised show cause notice, issued by the 1st respondent on 6.3.2009, the petitioner submitted that its Machilipatnam unit had not entered into a contract with any of the purchasers of goods from its other units; the Machlipatnam unit had supplied only components for certain equipment; such supply of parts and components were used by the receiving units in their manufacturing process; the components transferred by the Machilipatnam unit only figured as components and parts of a larger machinery or item which were sold by the units located outside the State to its customers; it is only the goods sold by units located outside the State as a larger machinery, or as other items, to the Armed Forces which could be brought to tax, and not the components transferred from the Machilipatnam unit of B.E.L; and the goods transferred by them to other units of the petitioner company were not sold as they were. The petitioner further stated that, in the revised show cause notice, the 1st respondent had failed to mention what was transferred by the Machilipatnam unit, to other units, were only components of certain goods such as mirrors, solar battery chargers, cable assemblies, scanner assemblies, bottom plates, top plates, kit antenna brackets etc., which were not sold by the receiving units as they were, but were used by them in their manufacturing process. Curiously the 1st respondent, while taking note of the contention that the goods supplied by the Machilipatnam unit were only components of a larger equipment manufactured by units located outside the State, holds that the said objection did not stand scrutiny as the goods sent by Machilipatnam unit to other units were earmarked for a particular contract/customer; they were not diverted to others; movement of goods to other units was incidental to the contract; and there was a bond between the contract and the movement of goods by the petitioner from within the State to other units located outside the State. The definition of "sale" under Section 2(g) of the CST Act makes it clear that, in order to constitute a sale, there must be a transfer of property in goods for consideration by one person to another. The concept of “sale” in the Sale of Goods Act is no different. “Sale” contemplates a seller and a buyer to be parties to a contract of sale. When a sale takes place the seller is divested of the property in goods, and the buyer acquires the property in the goods so transferred. In this process the title to the goods hitherto vested in the seller gets transferred to the buyer. In Halsbury's Laws of England, "sale" is defined as the transfer of ownership of a thing from one person to another for a price. In Chalmer's Sale of Goods Act, it is stated that "the essence of sale is the transfer of the property in a thing from one person to another for a price". It is axiomatic that "sale” can take place only between two persons. There cannot be any sale to one's self. (State of Madras v. Gannon Dunkerley & Co.[9]; K.C.P. Limited (Ramakrishna Cements) v. State of Andhra Pradesh[10]). In The K.C.P. Limited10, a Division Bench of this Court held:- “……………the company may have several units or divisions located at different places engaged either in the same line of manufacture or trading or in different manufacturing or trading activities. Normally, the units or divisions will have no separate identity of their own, much less a distinct legal entity. There may be separate establishments, separate planning and separate management, but these aspects by themselves do not detract from the basic characteristic of communion with the corporate body that had created these units or divisions. They can claim no independent existence apart from the company itself. The property of these units or divisions is legally held by the company. The profits generated by the units form part of the company's income and will go to the benefit of general body of shareholders of the company. So also, the liabilities or losses incurred by the individual units, in ultimate analysis, will have to be borne by the company. It is the company (the K.C.P. Ltd.) that can sue for the recovery of property or dues or be sued for the outstandings due on account of dealings of the units. It is on record that a single balance sheet is prepared by the company in respect of all the units and divisions owned and controlled by the company……” (emphasis supplied). Transfer of goods from one unit of the petitioner to another is in the nature of stock transfer and would not, by itself and without anything more, constitute “sale” as the petitioner company cannot be said to have sold goods to itself. Under S. 3(a) of the CST Act a sale or purchase of goods is deemed to take place in the course of inter-State trade or commerce if the sale or purchase occasions movement of goods from one State to another. A sale, by definition, being transfer of property becomes taxable under Section 3(a) if the movement of goods from one State to another is under a covenant, or an incident, of the contract of sale and the property in the goods passes to the purchaser. (Tata Iron and Steel Co. Limited, Bombay1). If the movement of goods from the unit within the State is occasioned by the order placed by the buyer, or is an incident of the contract of sale, its movement from the very beginning, all the way until delivery is taken by the buyer, is an inter-State movement. (Sahney Steel and Press Works Ltd.7). If the manufacture of goods within the State, and their movement thereafter to the unit outside the State, is an incident of the contract entered into with the buyer, i.e., it is intended that the same goods should be delivered by the unit outside State to the buyer there is no break in the movement of the goods, and the unit outside the State merely acts as a conduit through which the goods pass on their way to the buyer, it would amount to inter- state sale. (Sahney Steel and Press Works Ltd.7; English Electric Co. of India Ltd.8; Union of India v. K.G. Khosla and Co. Ltd.[11]). The concept of sale itself being intangible where there is no transfer of property in the goods there is no sale, and mere movement cannot be the subject-matter of taxation. (Kerala State Small Industries Development and Employment Corporation Ltd.5). If, however, the goods despatched from within the State to the unit outside the State is merely a component of, or is incorporated in, the goods manufactured by the unit outside the State it is not a sale under which the goods can be said to have commenced their movement from within the State, and the movement of goods from the unit within the State to the unit outside the State cannot be regarded as an incident of the sale of goods to the buyer. If the goods transferred from the unit within the State to the unit outside the State are not the same goods which are eventually sold to the buyer the inter-unit transfer of goods would not constitute inter-state sale of goods exigible to tax under the CST Act. In Bharat Heavy Electricals Ltd.6, the Supreme Court held:- “………….The Tribunal missed to note that the plant and equipment which is the subject-matter of contract such as boiler package or turbo generator package is incapable of being manufactured and despatched as a finished unit. Necessarily, the equipment/components or assembled units have to be despatched to the customer's site and installed there. The contract does not contemplate the despatch of a readymade finished product to the customer's place for instantaneous use in the power-plants, etc. On the other hand, it is clear from the terms of the contract, especially the price payment clause, that the components and parts forming part of the larger package should be supplied from time to time by BHEL. It is not at all possible to transfer the finished product such as "boiler package" at a time. It may be noticed that the Tribunal itself has given a different reasoning for excluding the inter-unit transfers from the taxable net at paragraph 29, sub-para 3. The Tribunal rightly puts it on the ground that the article transferred from the petitioner unit to the executing unit (Trichy, etc.) loses its identity as it is incorporated into a larger component or equipment. There is yet another closely allied reasoning to say that the goods sent to Trichy or other executing unit does not stand on the same footing as those sent direct to the customer's site. In the case of the former, there is interruption of movement and the snapping of inextricable bond that should exit between the inter-State movement and the contract of sale. In regard to the goods sent to Trichy unit (or other executing units), the despatch therefrom to inter-State customer takes place after assembly or processing and it is the sole concern of that unit. Trichy unit can even retain the goods for itself and divert them for any other use. There is nothing to indicate that the goods sent by Hyderabad unit to Trichy or other units are earmarked for any particular contract. The Hyderabad unit had no inkling of their ultimate utilisation and whether, how and when the goods will be moved to the customer's place by Trichy unit. As far as Hyderabad unit is concerned, it is a case of pure and simple stock transfer to another unit under "F" forms. At best, the inter-State movement, or to put it in other words, the inter-unit movement to Trichy can only be said to be for the purpose of fulfilling the contract but not in the course of fulfilment of the contract of sale - a distinction recognised in Tata Engineering & Locomotive Co's case: [1971] 2 SCR 849. The movement to Trichy in our opinion is not a necessary consequence of the contract nor is it incidental to the contract that goods of this nature should first be moved to Trichy. As already observed, there is no inextricable and uninterrupted bond between the contract and the movement of goods to Trichy or other sister units of the petitioner………………” (emphasis supplied) Likewise, in Flowmore Private Limited3, the Allahabad High Court observed:- “………….Once it is found that the pumping sets were part of the machinery to be supplied under the contract of sale, there could be no question of treating the movement of pumping sets from Ghaziabad to Delhi head office of the company as sale transactions subject to the Central sales tax. There was no sale of the goods by the assessee to the head office. Further there was no contract of sale for pumpsets and the pumpsets were a part of the goods sold. There is a further finding that the goods were assembled in Delhi and the title passed to the buyer in Delhi. In this view of the matter, the assessee is not liable to pay Central sales tax on the pump sets…………” It is only if the goods, which move from one State to another, are sold as they are and are not incorporated in, or do not form part of, other goods would the question of such transfer of goods attracting levy of tax under the CST Act, as an inter-state sale, arise. It is not in dispute that the goods supplied by the Machilipatnam unit, to other units of BEL located outside the State, are merely components of, and are incorporated in, the goods manufactured by other units of the petitioner company locate outside the State of A.P, and the goods transferred by the Machilipatnam unit are not sold to the Armed Forces as they are. The transfer of goods by the Machilipatnam unit, to other units of the petitioner company located outside the State, fall within the ambit of Section 6-A(1) of the CST Act, and are not inter-state sales exigible to tax under Section 6 of the Act. The order of 1st respondent, holding that the transfer of such components by the Machilipatnam unit to other units of the petitioner company situated outside the State constitutes inter-state sales under the CST Act, must therefore be quashed. The 1st respondent held that “F-Forms” filed by the petitioner did not meet the requirements of the CST (R&T) Rules; they were incomplete; the assessing authority had mechanically accepted the “F-Forms” and allowed exemption; the ‘F’ form submitted by the petitioner did not contain important details such as description of the goods sent, quantity or weight of goods, name of the road or railway transporter, and the date on which delivery was taken etc; and filing of defective ‘F’ forms amounted to non-filing of ‘F’ forms. It is the specific case of the petitioner, in the affidavits filed in support of the Writ Petitions, that the 1st respondent had raised a vague issue in the show cause notice that the 2nd respondent had accepted defective/incomplete F-Forms without specifying which of the alleged F-Forms were defective and, if so, what the defect was; and that, in any event, they should have been granted an opportunity to rectify the alleged defects in the F-Forms. The 1st respondent, without even stating what the alleged defects in each of the F-Forms were, has made a omnibus statement in the show cause notice dated 06.03.2009 that the petitioner had submitted defective “F- Forms”. Under Section 6- A(1) of the Act where any dealer claims that he is not liable to pay tax under the Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned is on that dealer and, for this purpose, he may furnish to the assessing authority a declaration containing the prescribed particulars in the prescribed form obtained from the prescribed authority along with evidence of despatch of such goods and, if the dealer fails to furnish such declaration, then the movement of such goods shall be deemed to have been occasioned as a result of “Sale”. Rule 12(5) of the Central Sales Tax (Registration and Turnover) Rules, 1957 stipulates that the declaration, referred to in Sub-section (1) of Section 6-A, shall be in Form ‘F’. Sub-Section (2) of Section 6-A of the CST Act creates a legal fiction to the effect that the transaction was occasioned otherwise than as a result of sale. The initial burden is on the dealer to prove that the movement was occasioned by reason of transfer of such goods otherwise than as sale. Prior to its amendment sub-section (1) of Section 6-A gave the dealer the option of filing a declaration in Form-F. After its amendment, a dealer is now required to file the declaration failing which the transaction is deemed to be an inter-state sale. On a declaration to that effect being filed by the assessee in Form F an inquiry is to be made by the assessing authority to satisfy himself that the movement of goods was occasioned otherwise than as a result of sale. The purpose of verification of the declaration in Form-F is to ascertain whether the branch/unit had merely acted as a conduit or the transaction took place independent of the agreement to sell as entered into by and between the buyer and the company or the unit of the company situated outside the State. (Ashok Leyland Ltd.2). While failure to submit proper “F-Forms” would necessitate the transactions being treated as inter-state sales, the 1st respondent should have specified in the show cause notice the defects he found in the F-Forms and, thereafter, afforded the petitioner an opportunity of rectifying such defects. No person should be deprived of his