The State of Tamil Nadu vs The Madurantakam Co-Operative Sugar Mills

V. Ramaswami, J.—The assessees, a society registered under the Co-operative Societies Act, returned a total and taxable turnover of Rs.

2,67,10,980.83 and Rs. 88,91,692.72 respectively for the assessment year 1968-69. They claimed exemption in respect of five items: (i) A

turnover of Rs. 5,10,872.26 relating to the alleged incentive payment made to the cane-growers included as part of the purchase price ; (ii) A

turnover of Rs. 92,729.14 relating to transport charges paid to the growers included in the purchase turnover of the cane ; (iii) A turnover relating

to sale of press-mud -- Rs. 7,315.80 ; (iv) A turnover of Rs. 16.84 relating to sale of bagasse ; and (v) A turnover of Rs. 4,17,422.45 relating to

sugarcane standard mixture. The assessing officer disallowed the claim of exemption in respect of all the five items. On appeal, the Appellate

Assistant Commissioner held that only the sum of Rs. 5,10,872.26, the alleged payment of incentive bonus and the sum of Rs. 92,729.14, the

transport charges paid by the assessees were liable to be included in the taxable turnover, but allowed the claim of exemption in respect of the

other three items. The assessees preferred an appeal to the Tribunal. The State also filed petitions for enhancement in so far as the three items

allowed by the Appellate Assistant Commissioner was concerned. The Tribunal held that the incentive payment made to the cane-growers

amounting to Rs, 5,10,872.26 was part of the price and that, therefore, it was properly included in the taxable turnover. So far as the transport

charges were concerned, on the ground that they were separately paid for by the assessees, the Tribunal allowed the exemption claimed. The

Tribunal also dismissed the application filed by the revenue for enhancement on the ground that the assessees could not be considered to be

carrying on business in respect of those items. The revenue has filed this tax revision case challenging the finding of the Tribunal regarding the

transport charges and the other items in respect of which the enhancement petition was filed. So far as items (iii), (iv) and (v) in respect of which an

enhancement petition was filed, there could be no doubt now that the assessees are liable to pay sales tax on those amounts also in view of the

decisions of the Supreme Court in State of Tamil Nadu v. Burmah-Shell Co. Ltd. [1973] 31 S.T.C. 426 . and of this court in Deputy

Commissioner of Commercial Taxes, Tiruchi Division v. North Arcot District Co-operative Sugar Mills Ltd.[1974] 34 S.T.C. 543. The order of

the Tribunal in regard to those items are, therefore, liable to be set aside.

The only item which needs our consideration is, therefore, the transport charges. Before the actual point is considered, it is necessary to set out

some more facts. Various cane-growers enter into an agreement for the supply of the cane produced by them to the assessees, who are sugar

mills. The assessees sometimes supply manures and fertilisers on credit and also arrange for inspection of the crop by experts. The cane-growers

have to deliver the harvested sugarcane at the factory site of the mills. The price will have to be paid at the statutory prices fixed by the

Government of India under the relevant Control Orders. It so happened that the cane-growers were agitating for payment of a higher price than the

statutory price fixed by the Central Government. At the instance of the State Government, the parties ultimately agreed on a higher price for the

sugarcane delivered at the factory site. The difference between the amount paid and the statutory price fixed is the one which constituted Rs.

5,10,872.26, which had already been held to form part of the purchase price and included in the taxable turnover and this amount is not in dispute.

Subsequent to the price fixation, the cane-growers were pressing for payment of the transport charges from the fields to the factory or the mills or

to take delivery of the cane at the fields without an obligation on the part of the cane-growers to supply the same at the factory site. This was also

agreed to between the assessees and the cane-growers. The agreement was that either the sugar mills will make its own arrangement to transport

the harvested cane from the fields to its factory or if the cane-growers were asked to transport them, they will have to be paid the agreed transport

charges. Out of the sum of Rs. 92,729.14, which was claimed as not includible in the taxable turnover as payment of transport charges, a sum of

Rs. 55,624.80 related to the amount paid by the assessee-sugar mills to various third-party lorry owners for transporting the cut sugarcane from

the fields to the factory site and the balance of Rs. 37,104.34 represent the amount paid to the sugar cane-growers towards transport charges. The

further fact is that when the cane-growers supply the cane at the factory site, they are given a separate voucher for the quantity of cane and the

amount payable in respect of the cane. They are given a separate voucher for transport charges to which they are entitled to. On the ground that

the transport charges were separately shown by the assessees, the Tribunal thought that under Rule 6(c)(i) of the Tamil Nadu General Sales Tax

Rules, 1959, the freight charges are not to be included in the taxable turnover of the assessees. It is the applicability of Rule 6(c)(i) and the

allowability of deduction that arises for consideration in this tax revision case.

So far as Rs. 55,624.80 was concerned, certainly it could not be included in the taxable turnover as that related to transport charges paid by the

sugar mills to third-party lorry owners and not to those who sold the sugarcane. So far as Rs. 37,104.34 is concerned, since it was transport

charges paid to cane-growers themselves to bring the cut sugarcane to the mill site, the argument is that it is to be included as part of the price,

unless it could be excluded under Rule 6(c)(i). It may be mentioned that the ""turnover"" is defined u/s 2(r) of the Tamil Nadu General Sales Tax Act

as meaning the aggregate amount for which the goods are bought or sold. Sugarcane is taxable at the purchase point as provided under entry 62 of

the First Schedule read with Rule 5. Thus, so far as the sugarcane purchase is concerned, the sugar mills, the purchaser, shall be deemed to be the

dealer and the amount for which the goods were bought had to be included in the total turnover. Rule 6(c)(i), the scope of which arises for

consideration, reads as follows :

6...In determining the taxable turnover, the amounts specified in the following clauses shall, subject to the conditions specified therein, be deducted

from the total turnover of a dealer :

(a) ...

(b) ...

(c) all amounts falling under the following two heads when specified and charged for by the dealer separately, without including them in the price of

the goods, sold : --

(i) freight;

(iii) charges for delivery.

It is the contention of the learned counsel for the assessees that the dealer in the case of goods which are to be taxed at the purchase point is the

purchasing dealer and if he shows the price of the goods and freight separately, he would be en titled to the benefits of Rule 6(c)(i). On a careful

reading of the provision, we are of the view that Rule 6(c) would apply only to a selling dealer who is liable to pay tax on his sales turnover and not

to a purchasing dealer who is to include his purchase turnover in his assessments. Though the word ""dealer"" by itself might include a purchasing

dealer the words ""specified and charged for by the dealer separately without including them in the price of the goods sold"" show that the clause

deals with a selling dealer showing the price and the freight separately in his invoice. The freight paid by a purchasing dealer could not be said to

have been specified and charged for by him separately and the amount paid by him could not also be said to be the price of the goods sold. Thus,

the manner in which the purchaser had shown the amount in his accounts or vouchers were given by him to the seller is immaterial. Vouchers are

only receipts, But, it is the manner in which the seller has prepared the invoice or charged for the price that is relevant for the applicability of Rule

6(c). The mere fact that there is evidence to show that the purchaser and the seller agreed for a particular price and it was the responsibility of the

purchaser to take the goods at the place of the seller does not by itself enable the purchaser to deduct the transport charges from the taxable

turnover. Normally the freight paid to the seller forms part of the price itself. The agreement between the seller and the purchaser might

contemplate a price for the goods and a particular amount for transporting charges, for delivery of the goods at the purchaser''s destination. Even

when such an agreement is there, unless the seller shows the freight charges separately, he would have to include the transport charges as part of

the price in the taxable turnover. Thus, how the invoice was prepared by the seller is relevant for the purpose of considering whether the freight

charges are to be included in the taxable turnover or not. Since the purchaser is not the person who prepares the invoice, Rule 6(c) could not apply

to the purchaser. We are, therefore, unable to agree with the Tribunal that by reason of the assessees paying the transport charges separately to

the cane-growers, they are entitled to deduct the amount from the taxable turnover. The order of the Tribunal, in so far as it related to a sum of Rs.

37,104.34 on account of transport charges is, therefore, liable to be set aside and it is accordingly set aside.

In the result, we hold that the transport charges to the extent of Rs. 37,104.34 and the turnovers relating to sale of press-mud, bagasse and

standard mixture are liable to be included in the taxable turnover. The revision petition is accordingly allowed to that extent. The revenue will be

entitled to its costs. Counsel''s fee Rs. 250.