Member Board Of Revenue, West Bengal vs M/S. Swaika Oil Mills

ACT: Constitution of India, Art. 286(1)((b)-Central Sales Tax Act, 1956, Section 5(1)-'In the course of export', applicability-F.O.B. contract-Goods delivered on foreign bound ship- Use of export-licence lent to exporter-Whether Sale exigible to sales tax.

HEADNOTE: The Netherlands Selling Organisation 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 from 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 : (1) There is no privity of contract between 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 sales are not part of one integral transaction. [272C, D] (2)The circumstance that the contract between the respondents 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 board the ship by the respondents, 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 cannot, by itself, make a sale one in the course of export. [272H, 273A-B] 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 customs 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]

JUDGMENT:

CIVIL APPELLATE JURISDICTION.: Civil Appeal No. 14-77 of 1972.

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

D. N. Mukherjee and G. S. Chatterjee for the Appellant. Shankar Ghosh and D. P. Mukherjee for the Respondent. The Judgment of the Court was delivered by CHANDRACHUD, J.-Article 286(1) (b) of the Constitution pro- vides that no law of State shall impose, or authorise the imposition of a tax on the sale or purchase of goods, where such sale or purchase 271 takes place in the course of the import of the goods into, or export of the goods out of, the territory of India. By the Sixth 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 was given the power by law to formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in clause (1). Acting in pursuance of this power, the Parliament enacted Section 5(1) of the Central Sales Tax Act, 1956, providing that 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 is effected by a transfer of documents of title to the goods after the goods, have crossed the customs frontiers of India. The, question which arises for out consideration in thisappeal is whether a sale effected by the respondents-M/s Swaika Oil Mills is a sale in the course of the export of goods out of the territory of India. This question was answered against the respondents by the 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 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 the respondents a certain quantity of linseed oil, "F.O.B. Calcutta price." The main terms of the contract of sale, which was made and concluded in Calcutta, are these :

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 triplicate;

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

(c) The purchasers were to send to the respondents their shipping broker for arranging booking of the shipping space for the goods to put 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 respondents were to shipnot more than 500 imperial gallons of linseed oil; and finally,

(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. Serajuddin etc. v. State of Orissa(1). (1) [1975] Suppl. S.C.R. 169.

272 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 in that case. Applying the ratio of Serajuddin's case to the facts before us, we are of the opinion that the, High Court of Calcutta, which did not have the benefit of that judgment, is wrong in holding that the sidle effected by the. respondents in favour of the Netherlands 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, the Netherlands Selling Organisation. (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) There is no privity of contract between the respondents and the foreign buyer. They sold the goods in India, which the buyer on his own accountexported to Indonesia.

The foreign buyer was undisclosed to therespondents 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 stand 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 and their own buyer and not by the contract of sale between the respondents and the Netherlands Organisation.

(5) The bill of lading 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 intended export of goods by the Netherlands Organisation. In loading the goods on the ship, respondents were acting as mere carriers, since 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 whose benefit the export was made or intended.

(9) The circumstances that the contract between the respondents 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 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 en- tered 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 course of export.

(10)The very agreement, which is the basis of the respondents' claim for exemption from sales tax, begins 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 Nether lends 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 favour 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 respondents claimed exemption, 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.

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