IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 WP(C).No. 17752 of 2004(L) ------------------------------------- PETITIONER(S): ------------------------- KERALA STATE CO-OPERATIVE MARKETING FEDERATION LTD., P.B.NO. 2024, GANDHI NAGAR, COCHIN-682 020, REPRESENTED BY ITS MANAGING DIRECTOR, MR.A.P.M.MOHAMMED HANISH. BY ADVS.MR.A.KUMAR MR.K.M.FIROZ RESPONDENT(S): -------------------------- 1. THE STATE TRADING CORPORATION OF INDIA LTD., P.B.NO. 1019, PERUMPALLIL BUILDINGS, M.G.ROAD, ERNAKULAM. 2. THE ASSISTANT COMMISSIONER (ASSMT) COMMERCIAL TAXES, SPECIAL CIRCLE III, ERNAKULAM. BY DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE FOR R1 BY GOVT. PLEADER MR.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.17752/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE CONTRACT OF THE PETITIONER WITH THE IST RESPONDENT DT. 20.5.87. P2;- COPY OF THE SALE BILL NO.271 DT. 30.6.86. P2A:- COPY OF THE SALE BILL NO.272 DT. 30.6.86. P3:- COPY OF THE SALE BILL NO.868 DT. 30.6.87. P3A:- COPY OF THE SALE BILL NO.957 DT. 30 .1.88. P3B:- COPY OF THE SALE BILL NO.946 DT. 29.2.88. P3C:- COPY OF THE SALE BILL NO.968 DT. 29.2.88. P3D:- COPY OF THE SALE BILL NO.969 DT. 29.2.88. P3E:- COPY OF THE SALE BILL NO.970 DT. 29.2.88. P3F:- COPY OF THE SALE BILL NO.971 DT. 29.2.98. P3G:- COPY OF THE SALE BILL NO.972 DT. 8.3.88. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE ASSESSMENT ORDER FOR THE YEAR 1986-87 DT. 28.8.93. R1(b):- COPY OF THE ASSESSMENT ORDER FOR THE YEAR 1987-88 DT. 28.8.93. R1(c):- COPIES OF LETTERS DT. 25.3.04 & 18.6.04. TRUE COPY P.S. TO JUDGE TSS (CR) P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No.17752 OF 2004 ......................................................................... Dated this the 25th May, 2009 J U D G M E N T The petitioner has approached this Court seeking for a direction to be issued to the first respondent to furnish Form 25 in respect of the transactions covered by the bills produced as Exts. P2 and P3 series, pertaining to the sale of black pepper for the years 1986-87 and 1987-88. 2. The case of the petitioner is that the petitioner is not the last seller or purchaser coming within the meaning of the term stipulated under the statute and that he is entitled to have Form 25 declaration from the first respondent, contending that it was the first respondent who exported the black pepper to the foreign buyers, though it is based on the terms of Ext. P1 contract. The case put forward by the first respondent (the State Trading Corporation) is that it can never be regarded as the last purchaser. It is submitted that, though Ext.P1 contract was executed between the petitioner and the first respondent, the materials were sold directly by the petitioner to the foreign W.P.(C) No.17752 OF 2004 2 buyers and that the role of the first respondent was that of an 'intermediary' and not as the actual exporter. The terms of the contract are mentioned in Ext. P1, wherein it is stated that all supply will be effected by the petitioner himself ; that the STC will be entitled to get ½% as 'service charge' payable by the petitioner/supplier so as to facilitate the export; that the supplier is to effect shipment under Bill of Lading showing STC as the shipper; that all penalties, sanctions, liquidated damages, bank charges, expenses, duties, taxes, etc. presently payable or that may become payable in future in connection with the execution of the export contract or under the contract with the petitioner shall be borne by the petitioner/supplier. Again, under Clause 8 of Ext. P1 contract, it is also specified that the supplier would undertake to indemnify the STC in all respects and shall always keep it fully indemnified against all taxes, claims, demands, losses, damages, expenses etc arising out of or relating to the relevant export contract forming an integral part of the contract. 3. Referring to the contents of the counter affidavit filed by the first respondent, Dr. K.B.Mohammadkutty, the learned Senior W.P.(C) No.17752 OF 2004 3 Counsel for the Ist respondent submits that, though orders were placed on the first respondent and the letter of credit was opened in its favour, the purchases were made by the petitioner and not by the first respondent/STC. It is added that all sale proceeds and export benefits were passed on to the petitioner, leaving a nominal service charge of '½%' to the first respondent as per Clause No.2 of the terms of contract. It is further stated that the petitioner shipped the goods directly to the foreign buyers and that Exts.P2 and P3 sale bills were prepared much later and that the said bills were never acted upon and no payments were effected as per the said bills. 4. It is also relevant to note that the impugned transactions relate to the period 1986-87 and 1987-88. The petitioner, after sleeping over the alleged rights for about 10 years, woke up only in March, 1998 by placing a request for issuance of Form 25 declaration. It is stated by the first respondent that the first respondent's assessments for the relevant periods were completed during 1993 and that the Assessing Authority has accepted the position in the assessment W.P.(C) No.17752 OF 2004 4 proceedings that the first respondent was acting only as an 'intermediary' of the export sales in question. The relevant assessment orders are produced as Exts. R1(a) and R1(b). After the cursory wake up in 1998, the petitioner approached the first respondent again only in July 2003 and the Writ Petition has been filed in the next year. While considering the scope of the rival contentions, it is necessary to go through the relevant rule as well, with regard to Form 25. Rule 32(14 ) of the KGST Rules is extracted below: Rule 32(14): “Every dealer in goods taxable at the point of last purchase in the State shall, if he is not liable to tax on such goods by reason of his not being the last purchaser in the State, obtain a declaration in Form 25 from the person to whom he has sold the goods. A blank book of declaration of form 25, shall be obtained from the assessing authority, on payment of a fee at the rate of seventy rupees per book of 50 forms. Every purchaser shall issue such a declaration to the seller. The declaration so obtained shall be submitted in duplicate to the assessing authority on or before the fifteenth of W.P.(C) No.17752 OF 2004 5 the month succeeding that to which the sales relate along with a statement of such declarations showing the name and addresses of the dealers to whom the goods were sold with the particulars of sale bill, quantity, and value, and the total turnover covered by such declaration.” 5. As per the said rule, it is very much evident that the concerned dealer, if he is not liable to pay tax on such goods by reason of his not being the last purchaser, shall obtain a declaration in Form 25 from the person to whom he has sold the goods and the declaration so obtained has to be submitted in duplicate to the assessing authority on or before the 15th of the month succeeding, along with a statement showing the name and address of the dealers to whom the goods were sold, with the particulars of sale bill, as stipulated therein. In the instant case, the transactions were of the years 1986-87 and 1987-88 and the petitioner has chosen to approach this Court seeking for a direction to the first respondent to issue Form 25 declaration only after '1 ½ decades'. The specific averments raised in the W.P.(C) No.17752 OF 2004 6 counter affidavit as to the sequence of events have not been rebutted by the petitioner by filing any reply affidavit. This being the position, this Court does not propose to enter into the factual controversies. More so, when the relative rights and liabilities to be dealt with are arising out of a contract as borne by Ext. P1. 6. Going through the contents of Ext.P1, it is very difficult to accept the proposition made from the part of the petitioner to arrive at a finding that the transaction between the petitioner and the State Trading Corporation was in the form of a sale, but on the other hand, it is evident that it was in the form of an 'intermediary/commission arrangement' as specifically contended from the part of the first respondent; for which, they collected the 'commission'/service charge as stipulated therein. The very stipulation for payment of 'commission' at ½ % itself denotes the nature and understanding as to the transaction between the parties. That apart, the stipulations in Ext.P1, particularly under paragraph Nos. 6,8 and elsewhere as to the conditions incorporated and the liability fixed on the supplier, shows that the transactions between the petitioner and the first respondent W.P.(C) No.17752 OF 2004 7 would never come to an end on effecting the supply. Showing the name of the first respondent as 'shipper' in the relevant records and proceedings was only for the purpose of facilitating the transactions in an effective and result oriented manner, which cannot be reckoned as the basis to arrive at a conclusion to the contrary. Ext.P1 contract executed between the parties was only for the purpose of facilitating sale on payment of 'commission', which could never be regarded as a 'Sale', so as to shift the liability to the shoulders of the first respondent and to compel them to issue Form 25 declaration, more so, at this belated stage. In the above facts and circumstances, this Court does not find any tenable ground for interference. The Writ Petition fails and it is dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk W.P.(C) No.17752 OF 2004 8