9911796707
TMI Blog1980 (10) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of sale effected by the assessee to Messrs. Rasul Co., Bombay, amounting to Rs. 23,49,766.80 had escaped assessment. The assessing authority was of the opinion that the said turnover related to inter-State sales. Hence by notice dated 4th March, 1975, it called upon the assessee to show cause why the said turnover should not be assessed to Central sales tax. The assessee filed objections but they were overruled by the assessing authority and a revised assessment was made taxing the turnover of Rs. 23,49,766.80 at 10 per cent. On appeal filed by the assessee the Deputy Commissioner (Appeals), Kozhikode, by order dated 1st December, 1976, set aside the order of assessment and remitted the matter to the assessing authority. After the remand the assessing authority assessed the dealer on a taxable turnover of Rs. 33,28,889 as escaped turnover applying only the rate of 3 per cent since the assessee had, by then, produced C form declarations. The said assessment was confirmed in appeal by the Deputy Commissioner (Appeals) by order dated 17th March, 1978. The assessee thereupon took up the matter in second appeal before the Tribunal. One of the contentions urged by the assessee befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the assessee and Messrs. Rasul Co., Bombay, had originated as per the agreement dated 1st April, 1970. In the said agreement the assessee is referred to as the sellers and Messrs. Rasul Co. as the buyers. The Tribunal has extracted in its order the relevant clauses contained in that agreement and it is necessary to reproduce them here: "1. The sellers have agreed to execute the orders received from time to time from the buyers by phone or telegrams or by letter for supply of the required quantity of export quality dry ginger with Agmark certificates in ready condition in the course of export to Jeddah and the purchasers have agreed to purchase the same on f.o.b. basis to be shipped from Cochin or Calicut by the seller taking the bill of lading in the name of the buyers and insurance to be arranged on account of buyers. 2.. It is hereby agreed that all the export quality dry ginger sold by the sellers to the purchasers shall be deemed to have been sold on f.o.b. basis unless otherwise agreed to in writing. The liability of the buyer to pay for the goods sold shall not cease under this condition even if the goods are arranged to be despatched by the seller to some other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chin. If, however the buyer requests the goods to be put on board at any port other than Cochin or Calicut and the seller in response to the desire of the buyer arranges to despatch the goods to the other port named by the buyer the seller shall be entitled to send the goods from Calicut to the port named in his own name drawing amounts through a bank on the security of the goods despatched by rail or steamer or lorry from their bankers and draw hundies (D.Ds.) on the seller for the value of the goods ex-ship rate plus expenses for gunnies stitching thread weighing loading in lorry or steamer or rail with Agmark certificate as also sales tax amounts payable under the K.G.S.T. Act, 1963, and other expenses like postage, etc., and to insure the goods on account of the buyers and the buyers undertake to honour the D.Ds. when presented through bankers and to arrange to pay the railway freight and/ or steamer freight and/or lorry freight and to take delivery of the goods as agent of the seller and to incur the expenses therefor and to arrange to put on board the ship at the Port so named by the buyer taking the bills of lading in the buyer's name incurring the necessary expenses therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in the agreement it becomes clear that the assessee had agreed to sell to Messrs. Rasul Co. against orders received from the latter from time to time by phone or telegram or by letter the required quantity of export quality dry ginger with Agmark certificates on f.o.b. basis for export by ship to Jeddah from the ports of Cochin or Calicut, the bill of lading being taken in the name of Messrs. Rasul Co., on whose account insurance was also to be arranged. The assessee was to retain the title over the goods until the goods were put on board the ship and its right to claim the value of the goods was to accrue only when the goods were placed on board the ship in trim condition and quality. The buyer (Messrs. Rasul Co.) could not as of right claim delivery in any manner other than on board the ship sailing to Jeddah from Cochin or from Calicut. The buyer (Messrs. Rasul Co.) was to take steps to insure the goods sold as soon as the goods are put on board the ship. In case the buyer requested that the goods should be put on board at any port other than Cochin or Calicut and the seller, in response to the said request, arranges to despatch the goods to the other port name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs in respect of which the assessee was a total stranger. What we are concerned with in this case is to determine whether the transactions of supply of dry ginger effected by the assessee to Messrs. Rasul Co. by sending the goods to Bombay pursuant to the instructions contained in the buyer's letter dated 5th April, 1970, are inter-State sales. From the facts narrated above it will be seen that there was an agreement entered into between the assessee and Messrs. Rasul Co., whereby the assessee had undertaken to sell the goods to the buyer in accordance with the orders to be placed by the latter and the goods were to be delivered by the assessee on board the ships at Cochin, Calicut or any other port that may be designated by the buyer. It is also clearly established that pursuant to the stipulation contained in clause 7 of the agreement and the instructions issued by the buyer as per the letter referred to above the assessee had agreed to despatch the goods to Bombay and place them on board the ship in the port of Bombay. The goods, in fact, moved from the State of Kerala to Bombay in the State of Maharashtra pursuant to the aforesaid agreement and a concluded sale had taken pl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
