Hindustan Steel Ltd. vs The Joint Commercial Tax Officer and Others

T. Ramaprasada Rao, J.—In this batch of writ petitions a common question of law arises. It is enough if the facts in one of these writ

petitions are noticed. The petitioner is an undertaking and an existing Company under the Companies Act of 1956. Its registered office is at

Ranchi, Bihar. It has steel plants at Bhilai, Madhya Pradesh, Rourkela in the State of Orissa and Durgapur in the State of West Bengal. It has a

branch office at No. 150-A-/4 Mount Road, Madras-2. The Company is a registered dealer under the Central Sales Tax Act in Madras, Madhya

Pradesh, Orissa and West Bengal. The petitioner deals in iron and steel sections, bars, sheets, pipes etc. manufactured at their various steel plants

distributed over the States in our country. The Madras office gathers the contracts and the relevant particulars of requirements from various intra--

State parties in this State and transmits them to the Head office at Calcutta for being dealt with by them according the exigencies such as availability

of the material and other factors governing the supply. During the assessment years 1964-65 to 1968-69, the petitioner was subject to Central

sales tax for all the inter-State transactions had by it with the purchasers in this State. Those assessments were completed, in so far as the years

1964-65,. 1065-66 and 1966-67, 1967-68 were concerned. Regarding the assessment year 1968-69 the assessment process was on but not yet

completed. In relation to the closed assessments for the four years as above, notices u/s 16 of the Tamil Nadu General Sales Tax Act which is the

processable section adaptable for purposes of bringing to tax escaped assessment under the Sales Tax Act were issued on the ground that there

was an escapement of assessment of Central sales tax to the State of Tamil Nadu. The explanation offered by the petitioner to the said show-cause

notice to re-open the closed assessments for the four years was not acceptable to the Revenue. Finally, by the challenged order dated 27th

September, 1969 the Joint Commercial Tax Officer, Mount Road, Madras-III Division, Madras-2, called upon the petitioner to suffer Central

sales tax for all the four years as above as also the current year which was in the channel of assessment on the ground that the turn-over involved

ought to have been subjected to central sales tax at this end (''Madras) and the fact that such transactions suffered a similar tax in the various States

of despatch such as the State of Orissa, the State of West Bengal and State of Madhya Pradesh would be an irrelevant consideration, if the

admitted inter-state transactions in question are assessable to tax by the State of Tamil Nadu. In the view that I intend taking, it is not necessary to

go into the further details as regard the quantum of assessment; but suffice it to say that the notices issued after re-opening of the assessment

indicates that several lakhs of rupees have escaped assessment in the process. In the order of assessment which is challenged before me, the

Assessing Authority has given succinctly the facts which it may not be necessary to notice at, this stage. The course of dealings which the petitioner

had through its Madras office may be summarised thus. The customers or buyers of the petitioner in the State of Tamil Nadu placed orders with

the petitioner''s principal office at Calcutta for their requirements of iron, steel, hardware etc. It is common ground that all such memos containing

details of requirements ordinarily known as orders, were forwarded to the petitioner at Calcutta. On receipt of such orders, the Central Office of

the petitioner instructs its various plants situate in various other States such as the State of Orissa, State of Madhya Pradesh and State (c)f West

Bengal to consign and despatch the goods so ordered to Madras. This implies that the petitioner accepted the orders at Calcutta, but was

processing the implementation of such orders by approaching its various factories situate in various States. One other incidental but necessary

particular which has to be noticed is that as and when the plants despatched the goods to Madras, the petitioner is made aware of the same and it

in turn prepares the invoice in relation to such supplies made by their respective plants in different States and sends the relative railway receipts to

its branch office at Madras for collection of the paice equivalent of the supply. In some cases the railway receipts are drawn for ''self and in others

in favour of the respective buyers or for persons, who placed orders. The Madras office endorses such railway receipts drawn for ''self in favour of

the buyers in exchange for money or delivers the railway receipts which are directly in the name of the buyer to it, on receipt of the consideration

therefor. According to the revenue the documents which are a symbol of property, are handled by the Madras branch. Further, the assessing

officer would have it that the goods in the instant case should be deemed to be unascertained goods and having regard to Section 3 (2) (b) of the

Act read with Section 4 (a) (b) thereto and on the basic hypothesis that the goods are unascertained goods he came to the conclusion that the situs

of the assessment is Madras and that having been overlooked in the earlier four years when the assessments were concluded, there has been an

escapement of tax, and such an escapement was brought to tax in the proceedings undertaken by the Revenue when it re-opened it as stated

already. They were of the view that Section 9 (1)of the Act was not applicable to the facts of the case as they were definite that it was not a sale of

ascertained goods. On this basis, the impugned orders of assessments were made.

The petitioner has come up to this Court challenging the same on the ground that there is total absence of jurisdiction on the part of the assessing

officer when he assumed that the goods in the instant case were unascertained goods and consequently was in error in not having invoked Sections

3 (2) (b) and 4 (2) (b) of the Act. The Revenue''s case, however, is equally emphatic that the circumstances of the transaction had to be looked

into and the matter was adjudged. The intention of the parties was that the appropriation of the goods should take place only in the State of

Madras notwithstanding the movement of the goods in the course of their inter-State sale from out of State--States.

The question therefore is very simple and resolves itself into the ascertaining of the fact whether in the course of inter-State trade, ascertained

goods were despatched from out of State--States. It is no doubt common ground that the goods were despatched, pursuant to the specific orders

placed for the purpose by the buyers in Madras, from States such as Madhya Pradesh, West Bengal and Orissa. All such States, who after

noticing that the goods moved from their States and that there were contracts of sale which occasioned such movement brought to tax the turnover

involved in such admitted inter-State transactions. They have been made parties to these writ petitions and they now appear by counsel before me.

They support the contention of the petitioner that this is a case of sale of ascertained goods and that the levy of Central tax by the respective out of

State--States is in accordance with Jaw.

The primary document which almost clinches the issue before me is the invoice which the petitioner issues on every occasion when it has

information about the despatch of the goods by its plants. A form of invoice has been produced before me. This shows that there was an order

which the buyer placed with it and that it was accepted by it on a particular date. The other particulars given in the invoice are the quality of the

sections, the number of pieces it contains, its weight and ultimately its price per ton. In the ordinary course of mercantile transactions invoices are

prepared on the basis of concluded contracts. An invoice is a mercantile document prepared by a seller after consensus is reached as between him

and the buyer regarding the terms of the contract which obviously include the quality, quantity, and the price of the goods. The invoice, thus,

understood is a piece of evidence to throw light upon the intention of the parties that what was being despatched by the various manufacturing units

of the petitioner company are ascertained goods and not goods which are yet to be ascertained or made specific on identifiable. Unascertained

goods are those over which there is no consensus ad idem between the seller and the buyer. A common incidence of unascertained goods is where

goods are sent in lots or in waggons and if something more has to be done to them for the purposes of ultimate delivery to the buyer, in accordance

with the terms of the contract. This perspective but reserved step which is an essential element in unascertained goods is absent in the case of sale

of ascertained goods. No doubt ascertained goods is not defined under the Act. But we could gather the legal equivalent of it by the various

explanations given to the expression by experts. They are always treated and understood as goods identified in accordance with the agreement

between the parties after a time when the contract of sale is made. After all under the Sale of Goods Act various rules are set out in the nature of

sections but they mainly enumerate rules of intentions, which intention has to be gathered and equally varies in accordance with the facts and

circumstances of each case. I have already referred to the invoice in this case. The preparation of the invoice by itself is reflective of a clear

unalterable intention on the part of the seller that he has not only accepted the contract and performed it but has appropriated the goods ordered

for towards that contract and it was pursuant to such a declared intention that the goods were being despatched or were despatched. Such being

the evidence in the instant case, I am unable to agree with the learned Counsel for the Revenue that even after the preparation of the invoice and in

the light of the circumstances disclosed on record, it should still be held that the goods despatched at the instance of the petitioner and duly

invoiced for by it retain the badge of unascertained goods. Strong reliance was placed upon Clement Distributors v. Deputy Commercial Tax

Officer (1969) 23 S.T.C. 86. As I said that in cases arising under the Sale of Goods Act which has a very prominent part to play while deciding

whether a particular transaction ought to suffer a tax and if it ought to, in whose hands, the intention of the parties has a prominent part to play.

Therefore, decided cases cannot axiomatic ally be taken under all circumstances to lay down general propositions of law when the question

involved is as to whether there was a sale of ascertained goods or unascertained goods. The proposition of law laid down in dement Distributors v.

Deputy Commercial Tax Officer (1969) 23 S.T.C. 86, was based on the fact that there was a sale of unascertained goods. Hence, that ratio

followed. But I am of the view that in the instant case the goods are ascertained goods and, therefore the principle in Cement Distributors v.

Deputy Commercial Tax Officer (1969) 23 S.T.C. 86, does not apply.

On the other hand the rule in Larsen and Toubro Limited v. Joint Commercial Tax Officer (1972) 30 S.T.G. 77 in the proper one to be applied,

having regard to the facts and circumstances of this case. That was also a case where despatches were made from out of State--States in response

to orders'' made by intra State dealers resulting in inter-State transactions. The State from which the goods were despatched, having regard to the

movement of the goods within the meaning of Section 3(a) of the Central Sales Tax Act rightly brought to tax those transactions under the

provisions of the Central Sales Tax Act. Those assessments were circuitously challenged as is done in the instant case by the State of Madras

stating that such inter-State transactions have to suffer Central sales tax in the hands of the assessing authorities at Madras. This was negatived by a

division Bench of our Court. Ramanujam, J., delivering the judgment on behalf of the Bench, while upholding the theory that in the case of

ascertained goods when such goods moved as a result of contract of sale from a State which is out of State, as regards the State of Madras, then it

is that State which has jurisdiction to tax the transactions under the Central Sales Tax Act. This principle squarely applies to the facts of this case.

I have no hesitation to find that the goods moved from outside State pursuant to a contract and in the course of the inter-State travel, such

transactions were rightly assessed and taxed to Central sales tax by States other than the State of Madras. The branch office at Madras was only

acting as a post-office for the collection of the price of the goods so obtained by the buyers in Madras pursuant to the contracts entered into

between them and the petitioner. The branch office at Madras had no more specific part to play and its activity here does not in any way reflect

and touch upon the inter-State nature of the transactions in question or that the inter-State movement started from that State outside the State of

Madras which by itself is enough for the assessing State to acquire jurisdiction under the Central Sales Tax Act to bring to tax such transactions.

The impugned order, therefore, Poses an error apparent and is also without jurisdiction. The rule nisi is made absolute. The writ petitions are

allowed. There will be no order as to costs. I shall however, make it char that in so far as the assessment year 1968-69 is concerned, excepting for

that portion of the order which touches upon the subject-matter which is considered in this writ petition, the other portions of the said order are not

in any way affected or set aside by reason of the disposal given in this writ petition.