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M/s K.C. Metal Industries v/s The Commissioner of Sales Tax

    SALES TAX REFERENCE NO. 11 OF 2002 IN REFERENCE APPLICATION NO. 6 OF 2001

    Decided On, 12 August 2010

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE V.C. DAGA & THE HONOURABLE MR. JUSTICE S.J. KATHAWALLA

    For the Applicant: P.C. Joshi a/w P.V. Surte, Advocates. For the Respondent: B.B. Sharma, Advocate.



Judgment Text

S.J. Kathawalla, J.


1. This is a Reference under section 61(1) of the Bombay Sales Tax Act, 1959 made by the Sales Tax Appellate Tribunal, Mumbai to seek the decision of this Court on the following substantial question of law :


?Whether on the facts and in the circumstances of the case and on the basis of the evidence placed on record the Tribunal was justified in coming to the conclusion that the impugned sale was not a sale covered by Section 3(a) of the Central Sales Tax Act, 1956??


The facts:


2. The Applicant M/s K. C. Metal Industries carries on the business of manufacture and sale of copper strips and ba In respect of the said business, the Applicant is registered under the Bombay Sales Tax Act, 1959 (?the BST Act? for short) as well as under the Central Sales Tax Act, 1956 (?the CST Act? for short).


3. Pursuant to an order received from M/s Mody Sons Pvt. Ltd., Mumbai, the Applicant supplied goods worth 26,86,615/-to their branches situated at Vapi and Silvasa (referred to as ?works? by the Applicant) . The Applicant was assessed by the Asstt. Commissioner of Sales Tax (Assessment), Borivali Division, Mumbai, for the period 1.4.90 to 31.3.91, both under the BST Act and the CST Act. It was contended on behalf of the Applicant, during the course of assessment, that the goods worth 26,86,615/-sold by the Applicant to M/s Mody Sons Pvt. Ltd., were interstate sales because though M/s Mody Sons Ltd. had an office at Nariman point, Mumbai, the goods were transported to the branches (?works?) of the purchaser at Vapi and Silvasa. The claim of the Applicant was disallowed by the Assessing Authority on the ground that the delivery of goods was given in Maharashtra and there was no movement of goods from Mumbai to Vapi. Consequently, the assessment resulted in demand of 1,69,836/-which includes interest under Section 36(3)(a) and 36(3) (b) at 348/-and 69,748/-respectively and penalty under Section 36(4A) at 100/-was raised under the BST Act and additional demand of 1,15,192/-was made.


4. Being aggrieved by the order of the Assessing Authority, the Applicant preferred First Appeals before the Deputy Commissioner of Sales Tax (Appeals) III, Mumbai. The Deputy Commissioner however, rejected the contentions raised by the Applicant and dismissed the First Appeals both under the BST Act as well as under the CST Act. The Deputy Commissioner also withdrew set off under 42I of the Bombay Sales Tax Rules, 1959. The Applicant, being aggrieved by the orders passed by the Deputy Commissioner (Appeals), preferred Second Appeals bearing Nos. 2156 of 1998 and 2157 of 1998 before the Sales Tax Appellate Tribunal, Mumbai (?the Tribunal? for short). The Tribunal, by its order dated 31st August, 2000, confirmed the disallowance of Applicant?s claim of interstate sales to the tune of 26,83,615/-but the order of the Deputy Commissioner withdrawing the said set off under Rule 42I was set aside and the interest under Section 36(3)(b) was proportionately remitted. Second Appeal No. 2156 of 1998 was thus partly allowed, while the Second Appeal No. 2157 of 1998 was dismissed.


5. Being aggrieved by the order dated 31st August, 2000 passed in Second Appeal Nos.2156 of 1998 and 2157 of 1998, the Applicant preferred an Application under Section 61(1) of the BST Act, requesting the Tribunal to refer certain questions of law to this Court for its decision. In view thereof, the above Reference was made by the Tribunal raising the aforesaid question of law seeking decision of this Court.


Submissions :


6. Learned Advocate appearing for the Applicant has taken us through the provisions of Section 3(a) of the CST Act, which reads thus:


?3. When is a sale or purchase of goods said to take place in the course of inter State trade or commerce.? A sale or purchase of goods shall be deemed to take place in the course of interstate trade or commerce if the sale or purchase ?


(a) occasions the movement of goods from one State to another; or


(b) ...............?


7. It is submitted on behalf of the Applicant that the order placed by M/s Mody Sons Pvt. Ltd., Mumbai was for goods worth 26,81,615/-required at their factory situated at Vapi. It is submitted that the bills issued by the Applicant is on Modison Metals Pvt. Ltd., at 85/A GIDC Estate, Phase No.1, P.O. Vapi, Dist. Valsad 296 195. The registration number, of the vehicle provided by the buyer, is also set out on the bills and it is also recorded in the bills that the transportation of goods is ?From BOMBAY To VAPI?. It is submitted that the purchasers also claimed MODVAT from the excise department in Vapi. Thus, the movement of the goods from Mumbai to Vapi was from one State to another. As a result, the sale is covered under Section 3(a) of the CST Act. It is submitted that the Applicant therefore rightly claimed sales under Section 75 of the BST Act and in support thereof ?C? forms were also produced. It is submitted that the Assessing Authority, the Deputy Commissioner of Sales Tax (Appeals) as well as the Tribunal erred in treating the said sales as local sales only on the ground that the delivery was given locally and there was no movement of goods from Mumbai to Vapi as a result of the sale/contract. It is submitted that though the present case of the Applicant is squarely covered by the decision of this Court in Commissioner of Sales Tax, Maharashtra State, Bombay Vs. M/s Nivea time, [1998] 108 STC 6, wherein it is inter alia held that the question whether it is an interstate Sale or intrastate sale, does not depend upon the circumstances as to in which State the property in the goods passes. It may pass in either State and yet the sale can be interstate sale. What is decisive is whether the sale is one which occasions the movement of goods from one State to another. However, the Tribunal has erred in holding that the ratio in the case of Nivea Times (supra) is not applicable to the Applicant's case. It is therefore, submitted that the decision of the Tribunal is completely erroneous and perverse and the question referred to this Court for its decision be answered in favour of the Applicant and against the Revenue.


Per Contra:


8. It is submitted on behalf of the Revenue that there is nothing on record to show that the goods were dispatched to Vapi/Silvasa in pursuance of a contract/ understanding between the Applicant and the buyer. In the absence of any such contract/understanding it is difficult to infer that the buyer was under an obligation to dispatch the goods to Vapi/Silvasa. Therefore the claim of the Applicant that the sales are covered under section 3(a) of the CST Act cannot be accepted. It is submitted that the conditions of sale in the decision of this Court in Nivea Time (supra) and in the present case are different and therefore the ratio in the case of M/s Nivea Time (supra) is not applicable to the present case. It is therefore submitted that the order passed by the Tribunal cannot be termed as erroneous or perverse in any manner and the Tribunal was fully justified in holding that the subject sales were not interstate sales. It is therefore submitted that the question referred to this Court for its decision be answered in favour of the Revenue and against the Applicant.


Conclusion:


9. We have considered the submissions advanced on behalf of the Applicant and also on behalf of the Respondent. We have perused the orders passed in the First Appeals as well as in the Second Appeals and have also perused the decision of this Court in Nivea Time (supra) and the decisions of the Hon?ble Supreme Court relied on in the said decision.


10. Section 3(a) of the CST Act provides that a sale or purchase of goods shall be deemed to take place in the course of interstate trade or commerce if the sale or purchase occasions the movement of goods from one State to another. Therefore, in order to hold that the sale or purchase of goods has taken place in the course of interstate trade or commerce it is mandatory for the sale or purchase to occasion the movement of goods from one state to another. It is therefore necessary to see as to when it can be said that the sale or purchase has occasioned movement of the goods from one state to another.


11. In the case of Oil India Ltd. Vs. The Superintendent of Taxes and others ([1975] 35 STC 445, there was no specific provision in the agreement for movement of crude oil from Assam to Bihar. Despite that, considering the facts and circumstances of the case, the Hon'ble Supreme Court held the sales to be sale in the course of interstate sales. It was observed that:


?Even though clause 7 of the supplemental agreement does not expressly provide for movement of the goods, it is clear that the parties envisaged the movement of crude oil in pursuance to the contract from the State of Assam to the State of Bihar. In other words, the movement of crude oil from the State of Assam to the State of Bihar was an incident of the contract of sale. No matter in which State the property in the goods passes, a sale which occasions ?movement of goods from one state to another is a sale in the course of interstate trade?. The interstate movement must be the result of a covenant express or implied in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the interstate movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course of interstate trade or commerce, that the covenant regarding interstate movement must be specified in the contract itself. It would be enough, if the movement was in pursuance of and incidental to the contract of sale.?


12. The Hon'ble Supreme Court, in its decision in English Electric Company of India Ltd. Vs. Deputy Commercial Tax Officer [1976] 38 STC 457 reiterated the principle set out hereinabove in the case of Oil India Ltd. (supra), and observed that-


?When the movement of goods from one State to another is an incident of the contract it is a sale in the course of interstate sale. It does not matter in which State the property in the goods passes. What is decisive is whether the sale is one which occasions the movement of goods from one State to another. The interstate movement must be the result of a covenant, express or implied, in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the interstate movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course of interstate trade or commerce, that the covenant regarding interstate movement must be specified in the contract itself. It will be enough if the movement is in pursuance of and incidental to the contract of sale.?


It was further observed:


?..... if there is a conceivable link between the movement of the goods and the buyer?s contract, and if in the course of interstate movement the goods move only to reach the buyer in satisfaction of his contract of purchase and such a nexus is otherwise inexplicable, then the sale or purchase of the specific or ascertained goods ought to be deemed to have taken place in the course of interstate trade or commerce as such a sale or purchase occasioned the movement of the goods from one State to another....?


13. In the case of Nivea Time (supra) decided by this Court, the assessee manufactured watches at its factory at Daman. The auction of watch movements by the Customs (Preventive) Collectorate, Bombay was open to actual users only. In the conditions of auction sale, it was mentioned that the purchaser had to be a small scale unit and an actual user. In the cash memos issued by the customs authorities to the assessee, the registration number of the assessee's factory at Daman as small scale unit was also mentioned. The watch movements purchased by the assessee were in fact moved by the assessee to its factory at Daman and used there in the manufacture of watches. It was also certified by the Superintendent of Excise that the goods by the assessee reached the assessee?s factory at Daman and were used there in manufacture of watches. It was held by the Sales Tax Authority that the purchases were intrastate purchases since the bills were issued by the customs department in the name of Bombay office of the assessee and the property in the goods passed to the assessee in Bombay. This Court, applying the ratio laid down in various cases including the ratio laid down by the Hon'ble Supreme Court in Oil India Ltd. (supra) and English Electric Company of India (supra), set out herein above, in its decision in Nivea Time (supra) held that what is decisive is whether the sale or purchase is one which occasions movement of goods from one State to another and applying this test, it was clear that the purchases in question were interstate purchase and no purchase tax was exigible thereon under section 13 of the BST Act.


14. We now turn to the facts in the present case to determine whether the sales in question are interstate or intrastate sale. The un-controverted facts of the case are?


i. The Applicant is in the business of manufacture and sale of copper strips and bars and has supplied goods to Mody Sons Pvt. Ltd. having their administrative office at Mumbai and their works at Vapi.


ii. The order was placed with the Applicant by M/s Mody Sons Pvt. Ltd., Mumbai for the goods required at their works situated at Vapi (Gujarat).


iii. The bills raised by the Applicant are in the name of Modison Metals Pvt. Ltd. at 85/A GIDC Estate, Phase No. 1, P.O. Vapi, Dist. Valsad 296 195.


iv. It is clearly set out in the bills raised by the Applicant that the goods are dispatched ?from Bombay to Vapi?.


v. Modison Metals Pvt. Ltd., by its letters, have informed the Applicant the registration number of the vehicle which was sent by them to the Applicant to collect the goods/material under a specific bill of specified value for being taken to Vapi (Gujarat).


vi. The Vehicle number by which the goods have been dispatched is also set out in the bills raised by the Applicant.


vii. The purchasers have claimed MODVAT in respect of the said goods from the excise department in Vapi.


viii. Shri Murli Hamdeo Yadav has filed his Affidavit stating that he had delivered the goods more particularly set out in his affidavit from the premises of the Applicant at Mumbai to Modison Metals Pvt. Ltd., 85/A GIDC Estate, Phase No.1, P.O. Vapi, Dist. Valsad and and Modison Pvt. Ltd. Building No.6, Government Industrial Estate, Piparia, Silvasa.


ix. C forms have been issued by the buyer to the Applicant in respect of the sa

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id goods. 15. As is decided by the Hon?ble Supreme Court in its decisions in the case of Oil India Ltd. (supra) and English Electric Company of India Ltd. (supra) and followed by this Court in Nivea Time (supra), no matter in which State the property in the goods passes, a sale which occasions movement of goods from one State to another State is a sale of interstate trade. Inter-State movement must be the result of a covenant express or implied in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the interstate movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary that the covenant regarding interstate movement must be specified in the contract itself. It would be enough if the movement was in pursuance of and incidental to the contract of sale. 16. The facts mentioned hereinabove which are supported by the documents produced by the Applicant before the Tribunal and also before this Court, establishes that the movement of metal strips/bars from Mumbai (State of Maharashtra) to Vapi/Silvasa (State of Gujarat) was in pursuance of and incidental to the contract of sale between the Applicant (seller) and M/s Mody Sons Pvt. Ltd. (purchaser). We therefore hold that the Tribunal was not justified in holding that the sale in question was not interstate sale, falling under Section 3(a) of the CST Act. Under the circumstances we answer the question set out in Paragraph-2 of this judgment in the affirmative i.e. in favour of the Applicant and against the Revenue. 17. The reference is disposed of accordingly with no order as to costs.
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