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THE DEPUTY COMMISSIONER OF AGRICULTURAL

INCOME TAX AND SALES TAX, CENTRAL ZONE,

ERNAKULAM . v .

M/S. KOTAK & CO., !JOMBAY, ETC. ETC.

April 3, 1973

(K, S. HEGDE AND H. R. KHANNA, JJ.]

Central Sr.ies Tax Act 1956--S. 5(2) read with Art. 286 of the Consti-· uuion.

A.essee Company sold to bu, ver ilr the course of import-- JVhether an inter-State sale. ~·.

The respondent was engaged in the supply of foreign cotton to texti!emilis. in South India on the basisof import.Jic.cnces issued to the mills-.

3uthori!~Og import of foreign cotton by them.. The firm supplied cotton to the mills on the basis of specific written contracts. One of the co.rrditicns in the -contract is that _the goods imported should not under any cir:"Umstances, be diverted fiom its d.:termined destination, i.e. the mills. _ Secor.dly~ the relative. shipping documnts were issued by theforeign seHer in the names of the respective mills and not in the name- Of the assessee-firm.

Again;_ the import licences issued to 'the mills. authorise the mills to import the goods; and o:n the reverse of. these licences is stated that the goods for the import of which the lice:nces. \vere grante-d should be the property of the licensees at the time of clearance through the customs. Still further, th~ _letters of authorisation isstied by the Gover, ament authorising the assessee-.firm to import the cotton show that the assessce had to do it purely as an agent . of thelicensces hoth at the time of th.e clearance through the customs and subsequent th{!reto. The firm entered into a contract with M/s. faha- laxmi Cotton Mills on 20-3-1964. According to the" respondent, by the contract entered into with the mills, the quantity of cotton agreed to be supp; ied to the mills was pecified as also its quality and places from where it ""' to be imported. The price was fixed on C.l.F. Cochirr. term. Payment was to be made by the mills to the firm against the. document. The other conditio; r.tS governing the contract were laid down on the reverse of the contract form, the most important clauses in ihc contiact \Vere that the C!Ontract was C.I.F. in nature notwithstand- ing anything to the contrary mentioned i; n the contract. . The price was subject to variation depending . upon the import duty, . freight rate,. iiisurancc premium and exchange rate. Jt was further provided by th.e l\:IiHs that the contract_ was irrevocable and that any differences betwee; n the parties had to be resolved through arbitration etc._ The question_ was \Vhether thi! sales made to the mills affeCted in this Country occasioned the import. The Sales Tax Officer, as wellas the Appellate Assistant' CoirJmissioner, held that the sales in question were intra-state sales and' therefore, the assessee was liable to tax. ·

On appeal, the Sales Tax Tribunal held that the assessee's case fell" within s. 5(2) of the Central Sales Tax Act, read with Art. 286 of the Constitution and -the Hi.!dl Court on revision, affirmed the decision ofthe Tribunal.·· Before this Court it was contended by the appellant that the. sales were intra-state sales . and as Mb, the assessee was liable totax:.

Dsmissing th.e_ ae?ls,_ ·. . ·

 . HeLD : The present case falls within the. rule laid down. by . this Court in K. G. Khosla & Co. v. Deputy Commissioner of Co1nmerciat

Taxes, (1966] 3 S.C.R. 352, wherein it was held that the saies in question occas; oned the import and as such it was exempt under s. S (2) of the Central Sales Tax Act, 1956 which says, "A sale or purchase -Of goods shall be deemed to take place in the course of the import of goods into the territory of India only if the sale or purchase either occasions such import or is eJfected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India." f887GJ

Coffee Board, Bangalore v. Joint CorrlJriercial Tax Officer, Madras <1mi An<>ther (1970] 3 S.C.R. 147, referred to aod distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1889 to 1891 of 1970.

Appeals by certificates from the judgment and order dated c October 28, 1969 of the Kerala High Court at Emakulam in T.R.C. Nos. 40, 41 and 42 of 1968.

Civil Appeals Nos. 1892 to 1896 of 1970

Appeals by certificates from the judgment and order dated October 28, 1969 of the Kerala High Court at Emakulam in o T.R.C. Nos. 43, 44, 45, 47 and 48 of 1968.

Civil Appe.al No. 1897 of 1970.

Appeals by certificates from the judgment and order dated October 28, 1969 of the Kerala High Court at Ernakulam in 'T.R.C. No. 46 of 1968.

Civil Appeals Nos. 1898 to 1900 of 1970.

Appeals by certificates from the judgment and order dated 'October 28, 1969 of the Kerala High Court at Ernakulam in

T.R.C. Nos. 52, 53 and 54 of 1968.

V. A. Sayed Mohammed and A. G. Pudissery, for the appel- F Jan ts (in all the appeals).

G. B. Pai, PC. Bhartari, 0. C. Mathur and Ravinder Narain, for the respondent (in C.A. Nos. 1889-1891 and. 1897/70).

T. A. Ramachandran and K. /ayaram, for the respondent (in C.A. Nos. 1892-1896/70). 'G Ram Phal Bansal, S. P. Pande and Ganpat Rai, for the respondent (in C.A. Nos. 1898-1900/70).

The Judgment of the Court was delivered by

HEGDE J.-In these appeals by certificate a common question of la~ arises for decision and that question is whether "?e H sales effected by the respondent with wh!ch we are concerneil m :these cases occasioned import of Egyptian celtton. The Sales

DY. COMMR. AGR!C. INCOME TAX v. KOTAK & co. (Hegdc, J.) 885

Tax Officer as well as the Appellate Assistant Commissioner, rejecting the contention of the assessee came to the conclusion that the sales in question were intra-state sales. But, on appeal, the Sales Tax Tribunal held that the assessee's case fall within S. 5(2) of the Central Sales Tax Act 1'956 read with Article 286 of the Constitution. The High Court on revision affirmed the decision of the Tribunal. In support of its conclusion the High Court observed thus :

"One of the conditions in the contract is that the goods imported should not under any circumstances, be diverted from its determined destination, i.e., the mills.

Secondly, the relative shipping documents were issued by the foreign seller in the names of the respective mills and not in the name of the assessee-firm.

Again, the import licences issued to the mills auth01ise the mills to import the goods; and on the reverse of these licences is stated that the goods for the import of which the licences were granted

>hould be the property of the licensees at the time of clearance through the customs.

Still further, the letters of authorisation issued by the Government authorising the assessec-firm to import the cotton show that the assessee had to do it purely as an agent of the licensees and the imported goods would be the property of the licensees both at the time: of the clearance through the customs and subsequent thereto."

The material facts of the case are fully set out in the judgment of the Appellate Tribunal and are as follows :

"The facts of the case here are not in dispute and the only point that has to be considered here is as to whether the sales are in the course of import. The assessee firm submitted before the Sales Tax Officer a detailed note in regard to the procedure in this matter. According to them the firm is engaged in the supply of foreign cO'tton to textile mills among other places in South India on the basis of the import licences issued to the mills authorising import of foreign cotton by them. The details in regard to the procedure contained in the nO'te submitted by the firm are found from page 37 onwards in the assessment files. It is stated that the firm supplies cotton to the mills on the basis of specific written contracts. Under the import control regulations, import licences are necessary for import of foreign cotton and they are issued to only actual iusers like the mills. The appellant firm and the similar concerns are not given import licences. The mills make enquiries with the firm as regards the quality of cotton they required, the period during which they would be supplied, the price and other particulars and on getting thee enquiries the appellant firm contacts the foreign suppliers in Egypt, Sudan or America for acertaining whether they could supply the cotton required. l! the offers received are found acceptable the appellant firm enters into contract wrth the various mills concerned and im!Uediately thereafter accept the offer made by the foreign suppliers. The suppl} of such foreign cotton to M/s. Mahalakshmi Textiles Mills Ltd .. one of the mills to whom supply was made by the firm is detailed in the said note and it is stated that the supply made to the other mills also .are under similar circumstances.

According to the appellant, .after receiving enquiries from the mills the firm con-· tacts the American Suppliers in New York. The foreign supplie!· agreed to supply the quantfty at the price agreed upon. lhereatter the firm entered into a contract with the mills dated 20-3-1964. that the import licence issued in favour of the mills was made availabae to the firm for utilisation of the contract that the letter authorrty issued auhorising the firm to import cotton was also issued. that the bill of lading obtained by the foreign supplier on shipment of the goods was also obtained by the firm and the cotton is thu' sent on to India. The contention of the appellant is that under the contract entered into with the mills the quantity oE cotton agreed to be supplied to the mills is specified as also its quality and places from where it was to be imported.

The price was fixed on C.I.F. Cochin tenns. Payment was to be made by the mills to the firm against the document.

The other conditions governing the contract are laid down on the reverse of the contract form.

The most important clauses in the contract re that the contract was C.I. F. in nature, notwithstanding anything to the contrary mentioned in the contract, the price was subject to variation depending upon the import duty, freight rate, insurance premium and exchange rate, that it was specifically provided that the sale was subject to import licence to be provided by the mills. that the contract was irrevocable and that any difference between the parties had to be resolved through the arbitration machinery provided in the contract itself, that under the Import control regulations, the importer is the mill. the auhorisation and the import licence are issued to the mills only, that even under the letter of authority although the firm was au1horised to ill}port the goods the mills remained the importer and they were liable as importer. that the particulars necessary for inclusion in the bill of lading are furnished by the Jinn to the foreign suppliers before the shipment is effected, that after the goods were shipped at the foreign Port the bill of Jading is forwarded along with the invoice and other connected documents of title through their Bank to India. that these documents are received "ty the firm after due payment of the value to the Agent Bank. that after receiving 1his document. information is given to the mill when they made the payment in accordance with the contract, that thereafter the goods wer~ cleared and delivered to the mills by clearing agents at Cochin :and forwarded to the mills".

DY. COMMR. AGRIC. INCOME TAX v. KOTAK & co. (Hegde, J.) 887

In another portion of its Order the tribunal stated that "the goods could not in any circums•tances be diverted from its determined destination, once it is shipped from the foreign country."

The facts set out by the Tribunal, quoted above, are stated by the Tribunal as admitted facts.

Hence we cannot go into the correctness of those facts.

Dr. Sayed Mohammed, the learned counsel for the department con•tended tthat the observation of the High Court that "one of the conditions in the contract is that 1he goods imported should not in any circumstance be diverted from its determined destination, i.e., the mills" is incorrect as there is no such term in the contract entered into betwe.en the respondents and the mills. This submission, though in a technical sense may be correct, has really no substance because, as could seen from the letter of authority issued by the Government that, one of the conditioos of the lel!ter of authority was, to quote the words of that letter 'The person or firm in whose favour it has been issued, will act purely as an agent of the licensee and tire

goods imported will be the property of the licence-holder both at the time of clearance through the Customs and subsequent thereto.

The licence-holder will have to ensure that the goods on importation will be delivered to him and shall not be disposed of otherwise.

The licensee shall not cause or permit the holder of the letter of authority to dispose of the goods."

This clause must be read as a part of the contract entered into between the respondents and the mills. Even ii this clause had not been there, there would have been no difficulty in coming to the conclusion that the respondents were precluded from selling the goods to anybody other than the mills to whom the users import licence had been granted.

From the facts set out abcwe it is obvious that the respondents could not have sold the goods to anybody other than the licence-holders.

From the facts set out a\J!Jve it is clear that this case clearly falls within the rule laid down by this Court in K. G. Khos/a & Co.

v. Deputy Commissioner of Commercial Taxes( 1).

The appellant therein, imported certain goods from Belgium in order to fulfil contracts with certain buyers in India. The question arose whether the sales effected in this country occasioned the import.

This Court came to the conclusion that the sales in question occasioned the import and as such it is exempt under Sec. 5 (2) of the Central Sales Tax Act, 1956, which says•• "A sale or purchase of goods shall be deemed to take place in the course of the im; mrt of the goods into the territory of India only if 1he sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the cutoms frontiers of India".

(1) [1966] J -S. C. R. 352

Dr. Sayed Mohammed tried to distinguish Khosla's case from the pr!:Sfnt case on the plea that in Khosla's case there. was only one sale whereas in the present case there were two sales.

We are unable to accept this contention as correct. From the facts set out above, it is clear that the facts of this case are similar to those found in Khosla's case.

Reliance was placed by Dr. Sayed Mohammed on the decision of this Court in Coffee Board, Bangalore v. Joint Commercial Tax Officer, Madras and Another(').

The facts of that case briefly stated, are as follows :

The Coffee Board auctioned certain quantities of coffee f0r the purpose of being sold in foreign countries. The purchasers of those lots were required to expol't that quantity of coffee to one or the other of the foreign countries mentioned in the sale notice. They were precluded ; from selling the same iuside India.

The question arose whether the purchases made by them occasioned export.

This Court came to the conclusion that the purchases in question were purchases for the purpose of export and the same did not occasion export. This Court did not differ from the view taken in Khosla's case.

On the other hand it distinguished that decision.

Hence the rule laid down in the Coffee Board's case is inapplicable to the present case.

For the reasons mentioned above these appeals fail and they are dismissed with costs.

There are four sets of respondents.

Hence four hearing fees-One set of hearing fee for each set of respondents.

s.c.

Appeals dismissed.

(!) [1970] 3 S. C. R. 147.