MEMBER BOARD OF REVENUE, WEST BENGAL

M/S. SWAIKA OIL MILLS August 4, -1977

(Y. V. CHANDRACHUD AND P. S. KAILASAM, JJ.J

Constitution of India, Art. 286(l)((b)-Central Sales Tax Act, 1956, Section 5(1)-'ln the course of export", applicability-F.0.B. contract-Goods delivered on foreign bound shiP- Use' of export-licence lent ro-exporter-1-Vhether Sa1e exigible to sales tax. ' ___ -The Netherlands Selling Orgiinisation Ltd. bought linseed oil .. F.O.B. Calcutta

- price", from. the respondent oil mills. The terms of the sale-contract provided that the oil mills would deliver the goods on a ship bound for Indonesia~ and lend the use of its export-licence to facilitate the export of the goods by the Netherlands Organisation to a foreign buyer. The respondent claimed -exemption tram the payment of sales-tax on the ground that the sale was effected in the course of the export of goods out of the Indian territory. The claim was rejected by the Revenue Authorities but was allowed by the High Court; in a reference by the Board of Revenue. - - ---:_-- - -- .

Allowing the appeal and holding that the sale was exigible to sales-tax, the Court.

HELD:- (lj Thef-e is no privity of contract bet\veen the respondents and the foreign buyer. The export was occasioned by the contract of sale between the Netherlands 'Organisation and their own buyer, and not by the contract of sale between the respondents and the Netherlands Organisation. The two safes are not part of one integral transaction. [272C, D]

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(2) The circumstance that the contract between-the-~- re:~P-nderits and the Netherlands Organisation was in the F.0.D. form and that the payment of price

was to be made only after the goods , vere put on board the ship by the respondentsr do not affect the fundamental position that there were two independent and unconnected sales. In loading the goods on the ship, the respondents were acting as mere carriers. The fact that the place of delivery is a foreign-bound ship cttnnot, by itself~ make a sale one in the course of export. [272H, 273A-BJ _ Mohd. Serajuddin etc. v. State of Orissa [1975] Supp. SCR 169, applied.

(3) The bill of lading was made out in the name of the Netherlands Organisation which obtained a complete and indefeasible title to the goods purchased by them from the respondents in India. The fact that the respondents were to lend them the use of their export licence or that the respondents paid the custom5 duty and the Port Commissioner's charges, does not mean that the goods were exported by, or at the instance of the respondents. (272 E-F, 273C]

CIVIL APPELLATE JURISDICTION.: Civil Appeal No. 1477 of 1972.

Appeal by Special Loave from the Judgment and Order dated 25-11-1970 of the Calcutta High Court in Sales Tax Reference No. 499 of 1967.

D. N. Mukherjee and G. S. Chatterjee for the Appellant.

Slzankar Ghosh and D. P. Mukherjee for the Respondent.

The Judgment of the Court was delivered by

CIIANDRACllUD, J.-Article 286(1) (b) of the Constitution pro- , vides that no law of. State shall impose, or authorise the impositi<tn

of a tax on the sale or purchase of goods, where such sale or purchase

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MEMBER REVENUE BOARD v. 'swAIKA OIL MILLS (Chandrachud, J.) 271

takes place in the course of the-import of the g;;-Ods into, or export of A the goods out of, the territory of India. By the s.xth Amendment to the Constitution which came into force on September 11, 1956, an amendment was made to clause (2) of Article 286, by which Parliament wa• given the power by law to formulate principles for determining when a sale or purchase of goods takes place in any of the ways men)ioned in clause ( 1)., Acting in pursuance of ibis power, the Parliament enacted Section 5(1) of the Central Sales Tax Act, 1956, B providingthat a sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export o.· is effected by a transfer of documents of title to the goods afr the goods have crossed the customs frontiers of Inch.

The question which arises for our consideration in this appeal c is whether a sale effected by the respondents-Mis Swaika Oil MH!s- - is a sale in the course of the export of goods out of the territory o1 India.

This question was answered against the respondents by too Revenue Authorities which held that the sale _was exigible to sales tax. But, on a reference made to the Calcutta- High -- Court by the Board of Revenue under section 21 ( 1) of the Bengal Finance

(Sales Tax) Act, 1941, the High Court set aside the assessment on D the ground that the sale took place in the course of export of the goods.

By a letter dated September 10, 1952, the Netherlands Selling Organisation Ltd. confirmed having bought from tl1e respondents a certain quantity of linseed oil, "F.O.B. Calcutta price." The main terms of the contract of sak, which was made and concluded in Calcutta, are these . : . E

(a) The price of the goods was to be paid F.O.B. Calcutta against the first presentation of 'Clean on board' Mate's receipt along with the relative G.R.I. forms in tripicate;

(b) The insurance charges were to be paid by the purchasers;

( c) The purchasers were to send to the respondents their ship- F ping broker for arran<Tino hnnldM C'f the shipping space for the goods to ~· l on board the ship by the respondents;

( d) The respondents were to mark the goods with the shipment marks specified by the purchasers in the letter;

(e) Due to import restrictions in Indonesia, the respondets were to ship not more than SDO imperial gallons of linseed oil; and finally, G

. (f) The "Export" was "to be made" under the export-licence of the respondents.

Mr. Shankar Ghose, who appears on behalf of the respondents, has raised a variety. of interesting points, which, in our opinion, have lost their validity and relevance in view of a Constitution Bench decision of this Court in Mohd. Se'rajuddin etc. v. State of Orissa(I).

(1) [1975] Suppl. S.C.R. 169.

SUPREME COURT REPORTS [J 978] l S.C.R.

A catena of decisions bearing on the question as to when a sale can be deemed to be in the course of export was examined elaborately ill

that case.

Applying the ratio of Serajuddin's case to the facts before us, we arn of the opinion that the High Court of Calcutta, which did not have the benefit of that judgment, is wrong in holding that the sa'fe effected by the. respondents in favour of the Netherfands Selling Organisation is a sale in the course of export Our reasons for saying so are these :

( 1) There was a direct, distinct and independent contract of sale between the respondents on one hand and their buyers in India, !he Netherlands Selling Organi'sation.

(2) The sale effected in pursuance of that contract is. wholly unconnected with the sale by the Netherlands Organization to their foreign buyer.

The two sales are not a part of one integral transaction.

(3) Thne is no privity of contract between the respondents and the foreign buyer.

They sold the goods in India, which the buyer on his own account exported to Indonesia.

The foreign buyer was undisclosed to the respondents and, indeed, there is nothing on the record to show the terms of the contract between the. Netherlands Organisation and their foreign buyer.

Respondents knew nothing of these terms and their contract with the Netherlands Organization did not stnd or fall by the terms of that sale.

(4) The immediate cause of the movement of goods and the export was the contract between the Netherlands Organisation and their foreign buyer and not the sale between the respondents and the Netherlands Organisation.

The export was occasioned by the contract of sale between the Netherlands Organisation ancl their own buyer and not by the contract of sale between the respondents and the Netherlands Organisation.

(5) The bill of Jading was indisputably made out in the name of the Netherlands Organisation which obtained a complete and indefeasible title to the goods purchased by them from the respondents in India.

( 6) There was no obligation either on the respondents or on the Netherlands Organisation to export the goods out of India.

(7) Respondents put the goods sold by them to the Netherlands Organisation on board the ship merely to facilitate the mtended export of goods by the Netherlands Organisation.

In loading the goods on the ship, respondents were acting as mere carriers, ince they were under an obligation to do so under their contract with the Netherlands Organisation.

(8) Neither of the two transactions created any mutual rights and obligations as between the respondents and the person or persons for whose benefit the export was made or intended.

(9) The circumstances that the contract between the respoodenls and the Netherlands Organisation was in the F.O.B. form and that the payment of price was to be made only after the goods were put on

MEMBER REVENUE BOARD v. SWAIKA OIL MILLS (Chandrachud, J.) 273

board the ship by the respondents, do not affect the fundamental position that there were two distinct, independent and unconnected sales.

The payment of price was made to depend on the fact of shipment for the reason that under the terms of the contract, which the respondents entered into with the Netherlands Organisation, a duty was imposed upon the former to put the goods on board the ship. The Netherlands Organisation, instead of accepting the delivery of goods in a factory or godown of the respondents, stipulated that the goods, on their behalf, be put by the respondents on board the ship.

The fact that the place of delivery is a foreign-bound ship cannot, by itself, make a sale one in the cours.e of export.

(JO) The very agreement, which is the basis of the respondents' claim for exemption from sales tax, hegins with the assertion : "We herewith confirm having bought from you" the. goods mentioned in the letter.

The sale transaction was thus concluded between the respondents and the Netherlands Organization in India.

Lastly,

(11) The fact that the. respondents were to lend to the Netherlends Organisation the use of their export licence or that' the respondents paid the customs duty and the Port. Commissioner's charges, does not mean that the goods were exported by or at the instance of -the respondents or that the sale effected by them in favbur of the

Netherlands Organisation occasioned the export.

If the respondents' name was shown as the exporters, it was because they had obligingly "lent the use of their export licence to facilitate the export of the goods by the Netherlands Organization.

For these reasons, we set aside the judgment of the High Court and

hold that the. sale in respect of which the respondmts claimed exemp- E lion, is not a sale in the course of export and is, therefore, exigible to sales tax.

The appeal is accordingly allowed with costs.

M.R.

Appeal allowed.