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Judgment
Mishra, J.—These petitions involve identical questions and are preferred by the State against the orders of the Tamil Nadu Sales Tax
Appellate Tribunal (Main Branch), Madras constituted under the Tamil Nadu General Sales Tax Act. In both the cases, the assessees-respondents
have claimed that they were entitled to exemption on the ground that sales were effected in the course of import. The Tribunal, under separate
orders has accepted their case in this regard. Since the only dispute is in regard to exemption of sales which are said to be in the course of the
import we are not required to state the other facts although the impugned orders referred to them in some details and decided their respective
disputes.
T.C. No. 79 of 1980 :
The disputed turnover, according to the assessee, related to sales made to Heavy Vehicles Factory, Avadi, under the import recommendation
certificate issued by the purchasers for the specific purpose of importing the goods under their order. It is not in dispute that certain particular type
of machineries were required by the Heavy Vehicles Factory which had to be imported from abroad. The Heavy Vehicles Factory accordingly
invited quotations from such persons who could supply to them such specified machineries and the assessee submitted its quotation, according to
it, after obtaining the quotations of the foreign principals in which they specified the prices as well as the estimated charges, customs duty, etc., and
stating that the prices were subject to enhancement depending upon final actual price of the makers and other expenses up to the time of delivery
and that the customer should take upon himself all risks involved in price fluctuations and undertake to pay the final actual price and accept
delivery. They accordingly, received supply orders from Heavy Vehicles Factory and sent supply orders to the foreign principals specifying the
goods and stating that the goods were intended for Heavy Vehicles Factory, Avadi. The foreign goods principals also, it is stated, in their
confirmation order specified that the goods were intended for Heavy Vehicles Factory, Avadi.
T.C. No. 222 of 1980 :
The assessee imported four typewriters in one of lot, two meant for M/s. Gimpex Minerals Pvt. Ltd. M/s. Gimpex Minerals Pvt. Ltd. had obtained
a licence to import two electric typewriters of c.i.f. value of Rs. 7,600. It was also granted a letter of authority by the Controller of Imports to
permit the assessee to import the goods on its behalf, to open a letter of credit and make remittance of foreign exchange for that purpose. The
import licence was issued on 16th September, 1975 and the letter of authority was issued on 8th October, 1975. On 9th July, 1975, the assessee
wrote to the buyer, M/s. Gimpex Minerals Pvt. Ltd., that it was in a position to supply the typewriter as per the price list attached. On 23rd
September, 1975, the assessee informed it that due to the fluctuation in international prices it was compelled to revise c.i.f. and selling prices and
accordingly indicated the revised rates leaving the other terms of the quotation dated 9th July, 1975 unchanged. On 25th September, 1975, M/s.
Gimpex Minerals Pvt. Ltd. placed an order for electric typewriters aforementioned accepting the selling the price indicated by the assessee on
23rd September, 1975 and asked the assessee to give the order top priority. Accordingly the assessee bought two electric typewriters as per the
order of M/s. Gimpex Minerals Pvt. Ltd. and two more, the details whereof are not known. The goods were thus brought to India.
In both the cases thus goods were imported to India and sold to parties who had sought import of such items as above.
In both the cases, the Tribunal has held that the assessees'' sales to their buyers were in the course of import.
The Parliament has formulated principles for determining when a sale or purchase of goods takes place in the course of inter-State trade or
commerce or outside a State or in the course of import or export and has stated in the Central Sales Tax Act, 1956, when is a sale or purchase of
goods said to take place in the course of inter-State trade or commerce, when is a sale or purchase of goods said to take place outside a State
and when is a sale or purchase of goods said to take place in the course of import or export Section 5 thereof states :
When is a sale or purchase of goods said to take place in the course of import or export. - (1) 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 or is
effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India.
(2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the 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 customs
frontiers of India.
(3) Notwithstanding anything contained in sub-section (1), the last sale or purchase of any goods preceding the sale purchase occasioning the
export of those goods out of the territory of India shall also be deemed to be in the course of such export, if such last sale or purchase took place
after, and was for the purpose of complying with, the agreement or order for or in relation to such export.
It is not necessary to refer to the legislative competence of the State and the field of operation of the Tamil Nadu General Tax Act because it is
not disputed before us that in case it is found that the sales involved in these cases had taken place in the course of import there shall be no tax
liability on it. It is necessary, however, to know the exact parameters of the sale in the course of import so that on facts as above, with regard to
the assessees in the two cases we may be able to say whether they have any liability or not or, in other words, they are entitled to claim exemption
on such sales or not.
In Coffee Board, Bangalore Vs. Joint Commercial Tax Officer, Madras and Another, , the Supreme Court has said :
The phrase ''sale in the course of export'' comprises in itself three essentials : (i) that there must be a sale, (ii) that goods must actually be exported,
and (iii) the sale must be a part and parcel of the export. Therefore either the sale must take place when the goods are already in the process of
being exported which is established by their having already crossed the customs frontiers, or the sale must occasion the export. The word
''occasion'' is used as a verb and means ''to cause'' or ''to be the immediate cause of''. Read in this way the sale which is to be regarded as exempt
is a sale which causes the export to take place or is the immediate cause of the export. The export results from the sale and is bound up with it.
The word ''course'' in the expression ''in the course of'' means ''progress or process of'', or shortly ''during. The phrase expanded with this meaning
reads ''in the progress or process of export''. Therefore the export from India to a foreign destination must be established and the sale must be a
link in the same export for which the sale is held. To establish export a person exporting and a person importing are necessary elements and the
course of export is between them. Introduction of a third party dealing independently with the seller on the one hand and with the importer on the
other breaks the link between the two, for then there are two sales one to the intermediary and the other to the importer. The first sale is not in the
course of export for the export begins from the intermediary and ends with the importer.
True, in the case of Coffee Board, Bangalore Vs. Joint Commercial Tax Officer, Madras and Another, , the phrase ""sale in the course of
export"" has been considered, but it is significant to note that the phraseology in sub-section (2) of section 5 of the Central Sales Tax Act, 1956,
quoted above is not dissimilar to the phraseology in sub-section (1) of section 5, and thus a sale or purchase of goods in the course of the import
or a sale or purchase of goods in the course of the export must have such elements as indicated by the Supreme Court in the said case.
In Deputy Commissioner of Agricultural Income Tax and Sales Tax v. Kotak & Co. [1973] 32 STC 6 the Supreme Court considered a case
in which a firm on import licence supplied cotton to the mills on the basis of a specified written contract. In their detailed note, before the Sales Tax
Officer they had submitted that they were engaged in the supply of foreign cotton 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 note
submitted by the firm were found in the assessment files. The firm supplied cotton to the mills on the basis of specified written contracts. The letter
of authority issued by the Government for import had to be under a condition that the person or firm in whose favour it has been issued, will act
purely as an agent of the licensee and the goods imported will be the property of the licence-holder both at the time of clearance through the
customs and subsequent thereto and that the licence-holder will have to ensure that the goods on importation will be delivered to him and shall not
be disposed of otherwise, as also that the licensee shall not cause or permit the holder of the letter of authority to dispose of the goods. The
Supreme Court has said :
This clause must be read as a part of the contract entered into between the respondents and the mills. Even if 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 user''s import licence had been granted. From the facts set out above, it is obvious that the respondents could not have sold the
goods to anybody other than the licence-holders.
From the facts set out above it is clear that this case clearly falls within the rule laid down by this Court in K.G. Khosla and Co. Vs. Deputy
Commissioner of Commercial Taxes, . The appellant therein imported certain goods from Belgium in order to fulfil a contract with certain buyers in
India. The question arose whether the sale effected in this country occasioned the import. This Court came to the conclusion that the sale in
question occasioned the import and as such it is exempt u/s 5(2) of the Central Sales Tax Act, 1956.
In Khosla''s case [1966] 17 STC 473, the Supreme Court considered a case wherein in order to fulfil a contract with the purchaser the
assessee had to enter into a contract with the manufacturers in Belgium. The goods were so got manufactured and imported into India and cleared
at the Madras Harbour and supplied to certain parties on the instructions of the buyer. This Court (High Court) took the view that there was no
privity of contract between the Belgium manufacturers and the departments that ultimately received the supplies when the manufacturers consigned
the goods to the assessee under bills of lading, which, after clearance at the Madras Harbour by the assessee, were despatched for delivery to the
ultimate consumers indicated by the buyer, and accordingly concluded that there was no sale in the course of the import. In the Supreme Court in
appeal, however, the judgment of this Court was reversed and it was observed thus :
It seems to us that it is quite clear from the contract that it was incidental to the contract that the axle-box bodies would be manufactured in
Belgium, inspected there and imported into India for the consignee. Movement of goods from Belgium to India was in pursuance of the conditions
of the contract between the assessee and the Director-General of Supplies. There was no possibility of these goods being diverted by the assessee
for any other purpose. Consequently we hold that the sales took place in the course of import of goods within section 5(2) of the Act, and are,
therefore, exempt from taxation.
An attempt, however, was made in The Deputy Commissioner of Agricultural Income Tax and Sales Tax Central Zone, Ernakulam Vs. Kotak
and Co., Bombay, etc. etc., to distinguish K.G. Khosla and Co. Vs. Deputy Commissioner of Commercial Taxes, . The Supreme Court, however,
rejected any attempt to distinguish.
In Commissioner of Sales Tax v. Metal Distributors Ltd. [1977] 39 STC 212 a Bench of the Bombay High Court has also examined the
scope of the expression ""sale or purchase in the course of import"" and indicated that the facts disclosed that it was a transaction of agency and not
an act of purchase by the assessee having freedom to sell as it liked. Section 5(2) is attracted and such sale is a sale in the course of import.
This Court in State of Tamil Nadu v. I.B.M. World Trade Corporation [1985] 60 STC 118 has examined computing principles which are
applied to find out whether a particular sale is in the course of import or not and taken notice of cases in which courts, in particular the Supreme
Court, has found that sales by the assessee were not in the course of import. Such cases in which the Supreme Court has rejected contentions in
favour of exemption u/s 5(2) of the Act are, Binani Bros. (P) Ltd. v. Union of India [1974] 33 STC 254 and Mod. Serajuddin v. State of Orissa
[1975] 36 STC 136. In Binani Bros. (P) Ltd.''s case [1974] 33 STC 254the Supreme Court has held that the sale by the assessee to the
purchaser did not occasion the import of the goods and it was the purchases made by the assessee from the foreign sellers which occasioned the
import of the goods and that there was no privity of contract between the purchaser and the foreign seller who did not enter into any contract by
itself or through the agency of the assessee to the purchaser. In that case the purchaser did not obtain any import licence and it was the assessee
who had obtained the import licence and imported the goods for the supply to the buyer. In Serajuddin and Others Vs. The State of Orissa, , the
assessee who had no export licence has sold the goods to the State Trading Corporation which had entered into an agreement of sale with the
foreign buyer. That was a case of an export by the State Trading Corporation, on the basis of the licence obtained by them. The State Trading
Corporation, the Supreme Court held, could not be treated as an agent of the assessee who had sold the goods for export.
In I.B.M. World Trade Corporation''s case [1985] 60 STC 118 this Court on facts found that the ruling indicated in the judgment of the
Supreme Court in Kotak & Co.''s case [1973] 32 STC 6 was attracted reiterated that, whether the importer acted under his own import licence
and had freedom to do away with the contract or not, will always be the test to find out whether there has been any sale in the course of import or
not.
Coming to the facts of the case in hand while the assessee in T.C. No. 79 of 1980 acted under its own independent licence to import and
although there was some sort of contract to supply certain specified items to Heavy Vehicles Factory and it appears that it did supply such articles
to Heavy Vehicles Factory, there was no nexus between the import and the sale. It is a case falling under the rule in Binani Bros. (P) Ltd. Vs.
Union of India (UOI) and Others,
The case of the assessee in T.C. No. 222 of 1980, however, is different. It was under the import licence of M/s. Gimpex Minerals Pvt. Ltd.
that two electric typewriters were imported and handed over to them. Some doubt, however, has been sought to be created for the reason of four
electric typewriters having been imported as per the invoice. It is not known whether the other two typewriters were similarly imported under the
licence of any other buyer or not and the department has not shown that there was any charge upon the sale of the remaining two typewriters with
respect to which they had proceeded against the assessee. It will be difficult for the department to import factors with respect of the two electric
typewriters which were not covered by the licence of M/s. Gimpex Minerals Private Ltd.
As a conclusion of our discussion above, we have no hesitation in holding that the Appellate Tribunal has committed an error of law in granting
exemption with respect to the alleged import of spare parts for G.P. Copying Lathe KLM-A11/100-S1. No. 5606 and ""TESA IMICRO Internal
Tri-point Micrometers"" and supply to the respondent in T.C. No. 79 of 1980. The Tribunal, however, has rightly exempted the licensee-
respondent in T.C. No. 222 of 1980 with respect to two electric typewriters aforesaid.
In the result, T.C. No. 79 of 1980 is allowed; the order of the Tribunal is set aside and the case is remitted to the taxing officer to proceed to
recover tax with respect to the items aforementioned. T.C. No. 222 of 1980 is dismissed. There will be not order as to costs in both cases.
T.C. No. 79 of 1980 allowed.
T.C. No. 222 of 1980 dismissed.