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TMI Blog2025 (1) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... ATE OF RAJASTHAN, THE COMMISSIONER COMMERCIAL TAXES, JAIPUR, THE ASSISTANT COMMISSIONER COMMERCIAL TAX DEPARTMENT, JAIPUR, THE STATE OF BIHAR AND THE STATE OF JHARKHAND [ 2024 (10) TMI 1124 - CESTAT NEW DELHI] It was held in the case that ' The movement of goods cannot also be considered incidental to the Master Agreement. Reliance placed by the Rajasthan Tax Board and the learned senior counsel for the State of Rajasthan on clause 2 of the Master Agreement to justify that the movement of goods occurred incidental to the Master Agreement, is not correct.' Conclusion - The transactions were stock transfers, not sales. Appeal allowed. - MR. DILIP GUPTA, PRESIDENT AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Pankaj Ghiya, Advocate for the appellant None for the State of Rajasthan None for the State of Jharkhand None for the State of Bihar ORDER The order dated 04.10.2017 passed by the Rajasthan Tax Board, by which five appeals filed by M/s Devans Modern Breweries Ltd. [the appellant] have been dismissed and the assessment orders for the years 2009-10, 2010-11, 2011-12, 2012-13 and 2013-14 have been upheld, has been challenged in these five appeals. 2. The issue involved i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a detailed order dated 21.10.2024, the present appeals which challenge the order dated 05.09.2018 passed by the Rajasthan Tax Board, deserve to be allowed. 5. No one has appeared for the States of Rajasthan or for the State of Jharkhand and the State of Bihar. The State of Jharkhand and the State of Bihar are supporting the appellant. 6. A perusal of the facts of these five appeals and the facts of the fourteen appeals decided by the Tribunal on 21.10.2024 clearly show that they are similar. The Liquor Sourcing Policy framed by the State of Bihar and the Liquor Policy framed by the State of Jharkhand which came up for consideration in the decided appeals has also come up for consideration in these five appeals. The Master Agreement entered into between the appellant and the Corporation at Patna and the Master Agreement entered into between the appellant and the Corporation in Jharkhand are identical. 7. After a detailed consideration of the clauses of the Master Agreement, the Liquor Policy and the decisions on which reliance was placed, the Tribunal recorded the following findings in the order dated 21.10.2024: 46. It would now be appropriate to examine the facts of the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Corporation from time to time keeping in view the demand of beer supplied by the manufacturer. The manufacturer has to bottle, seal, pack, load, transport, unload and stock the beer at the depots of the Corporation at its cost and risk. The manufacturer has also to deliver the liquor in good condition within such time and at such depots as may be specified by the Corporation. Delivery by the manufacturer has to be in line with the OFS placed by the Corporation and shall be completed within the period specified by the Corporation. The Corporation has to specify the quality of beer to be delivered and the manufacturer has to adhere to such quality specification. The Corporation also has the right to forthwith terminate any or all OFS placed on the manufacturer and forfeit the deposits on certain conditions. The manufacturer has to deliver the beer at a price indicated by the Corporation but payment for the beer delivered shall be made only after the disposal of beer. 50. Clause 5A of 19C License requires Carlsberg to maintain minimum stock of liquor at its depots as prescribed by the Commissioner from time to time and to recoup within 7 days in case the stock goes below the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the distributors undertook to purchase the products as mutually agreed upon from time to time . Thus, sales by Kelvinator of India to the distributors depended upon the future Agreements between the parties from time to time. The mode of dealings between the parties was that subsequent to the distribution Agreements, orders would be placed by the distributors with Kelvinator of India, after the refrigerators reached the sale office and godown of Kelvinator in Delhi. 54. In the present case, in terms of the Liquor Policy of the State of Bihar, the Corporation is under no obligation to procure any specified minimum quantities of beer. The Corporation issues the OFS on the local depots of the appellants situated in the State of Bihar for supply of specified quantity of beer. The OFS have a validity period within which the goods are required to be delivered to the Corporation. Clause 10.1 of the Liquor Policy clearly provides that the supply of beer to the Corporation against OFS shall be construed as an agreement to sell under section 4(3) of the Sale of Goods Act. Clause 5A of the License also requires Carlsberg to maintain a minimum stock of liquor at its depots in the State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants will be liable to bear the cost and risk towards loading, transporting, unloading and stacking liquor at the depots of the Corporation and the Corporation will not be liable for any transit risk. Clause 2.2 provides that the beer should be delivered in good condition within such time and at such depots of the corporation as specified by the Corporation. Clause 2.3 talks of transit loss, while clause 2.4 provides that the delivery shall be required to be made in terms of the OFS to be placed by the Corporation. It is, therefore, clear that the time and place of delivery of the stock of beer has been left unspecified. The delivery of beer has also been left open for the parties to determine from time to time. None of the clauses of the Master Agreement contemplate manufacture and delivery of liquor to the depots of the Corporation from outside the State of Bihar. The clauses merely discuss the manner in which the goods are to be delivered at the depots of the Corporation and issues incidental to it. In fact, there is no reference to the manufacturing activity undertaken by the appellants. The Master Agreement merely grants an option to the Corporation to purchase goods at ..... 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