M.S. Mylswamy vs The State of Madras

Ramanujam, J.—The question involved in both these cases is the same and therefore they are dealt with together. The assessee is the same

in both the cases. The first case relates to the assessment year 1963-64 and the second case relates to the assessment year 1964-65. The

transactions involved are identical. The assessee entered into a contract with the public works department to supply sand at the rate of Rs. 75 per

100 cu. ft. The total amounts received by the assessee in the two years in question towards the supply of sand from the public works department

have been assessed to sales tax on the basis that there has been a sale of sand by the assessee to the department. The assessee contended right

through that the supply of sand was execution of a works contract and that there is no sale of sand as such in the transactions involved in these two

cases. The sales tax authorities as well as the Tribunal held that a contract for sate of sand was entered into by the assessee with the department

and that it is not a works contract in the course of which the supply of sand came to be made.

Before us, the assessee seeks to question the correctness of the view taken by the department as well as the Tribunal. When the cases were

taken up, the learned Counsel for the assessee sought for an adjournment of the cases on the ground that the necessary contracts have to be

secured and produced for the purpose of establishing the assessee''s case that the supply of sand was in the course of works contract. But as

pointed out by the Tribunal, neither the original contract nor a typed copy of the same was produced at any stage before the sales tax authorities.

Even when the matter was before the Tribunal, the Tribunal gave repeated opportunities to the assessee to produce the relevant contracts. But for

reasons best known to the assessee, no contract was produced and, therefore, the Tribunal had to proceed and decide the nature of the

transactions without the benefit of seeing the concerned contracts. In view of the above circumstances, we do not feel called upon to postpone the

hearing of the cases merely on the offer of the learned Counsel to get the contracts from the assessee and produce the same here before us.

On the merits, the Tribunal has held that a consolidated price of Rs. 75 per 1.00 cu. ft. of sand supplied by the assessee has been charged and

that it represents the actual price of the sand supplied. The facts established in these cases indicate that the assessee paid seigniorage fee to the

revenue department for taking the river-sand and then undertook to collect the sand and supply the same to the public works department. A

contract relating to the year 1965-66--this is not the year with which we are concerned--has been filed by the assessee to show the nature of the

contract which he had entered into with the department in that year. Even taking that contract as a representative one, we are of the view that the

contract does not involve any works contract as such. It merely says that the assessee has to collect clean river-sand from Palar river and convey

the same in his lorry to the dam site. Having regard to the nature of the transaction in these cases, we are of the view that the Tribunal is right in

holding that the assessee merely sold sand to the department and collected the price.

On similar facts, this Court held in T.C. Nos. 175 to 179 of 1968 (Deputy Commissioner of Commercial Taxes v. D. Varadaraja Padayachi

[1973] 32 S.T.C. 150, that there could be only a sale of the material involved and there cannot be a works contract. In that case, the assessee had

entered into a contract with the Neyveli Lignite Corporation to procure pebbles from certain portions of the Government lands, which were taken

on lease by the Neyveli Lignite Corporation and supply them to the corporation. The agreement provided that the royalty payable to the

Government for the collection of pebbles has to be borne by the assessee, that the pebbles to be supplied to the corporation should be of

particular specification and that the corporation has got a right to reject the pebbles, if they are not of the required specification. In those

circumstances, this Court had expressed the view that the transaction involved was only sale of pebbles and not a works contract.

It is not in dispute that the assessee in these cases paid seigniorage fee to the revenue department for collection of the sand from Palar river.

After removing the sand, the assessee can always divert the sand to any other purpose, as by paying the seigniorage fee, he becomes the owner of

the sand which he collects from the river. Therefore, it has to be taken that the assessee became the owner of the sand as soon as he collected the

same from the river and then the property in the sand has been transferred to the public works department when he supplied the sand in

accordance with the contract entered into by him. In the circumstances, we hold that the Tribunal has come to the right conclusion in these cases.

The tax cases are, therefore, dismissed with costs. Counsel''s fee is Rs. 150 in each case.