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The Hyderabad Asbestos Cement Products Limited and anr. Vs. the State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case Number Writ Petition Nos. 1954 of 1966 and 1608 of 1967
Judge
Reported in[1973]30STC26(AP)
AppellantThe Hyderabad Asbestos Cement Products Limited and anr.
RespondentThe State of Andhra Pradesh and ors.
Appellant Advocate K. Srinivasa Murthy and ; D. Venkatappayya Sastry, Advs.
Respondent Advocate P. Venkatarama Reddy, Adv. ;for the Principal Government Pleader
DispositionPetition dismissed
Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter......chinnappa reddy, j.1. these two writ petitions raise common questions and may be disposed of by one judgment. it is sufficient if the facts in w.p. no. 1608 of 1967 are mentioned. the petitioner in w.p. no. 1608 of 1967 is the hyderabad allwyn metal works limited. in compliance with section 46 of the factories act of 1948 and the rules made thereunder, the petitioner provides and maintains a canteen for the use of the workers. the petitioner-company submitted a provisional return to the commercial tax officer, first circle, hyderabad, in form a-2 under the andhra pradesh general sales tax act. the commercial tax officer, noticing that the turnover relating to the sales at the canteen had not been included in the return, issued a notice on 26th october, 1966, proposing to include the sales.....
Judgment:

Chinnappa Reddy, J.

1. These two writ petitions raise common questions and may be disposed of by one judgment. It is sufficient if the facts in W.P. No. 1608 of 1967 are mentioned. The petitioner in W.P. No. 1608 of 1967 is the Hyderabad Allwyn Metal Works Limited. In compliance with Section 46 of the Factories Act of 1948 and the Rules made thereunder, the petitioner provides and maintains a canteen for the use of the workers. The petitioner-company submitted a provisional return to the Commercial Tax Officer, First Circle, Hyderabad, in Form A-2 under the Andhra Pradesh General Sales Tax Act. The Commercial Tax Officer, noticing that the turnover relating to the sales at the canteen had not been included in the return, issued a notice on 26th October, 1966, proposing to include the sales of food and drink at the canteen in the turnover of the petitioner for the purpose of provisional assessment. The petitioner was asked whether it had any objection to the same. The petitioner submitted objections on 30th November, 1966, stating that the sales at the canteen could not be included in the turnover of the petitioner as they were not made in the course of its 'business', but were made in order to comply with the requirements of statute. The Commercial Tax Officer, however, did not agree with the objections of the petitioner and included the sales at the canteen in the turnover. The petitioner preferred an appeal to the Assistant Commissioner of Commercial Taxes, but his appeal was rejected on 18th February, 1967. The petitioner preferred an appeal to the Sales Tax Appellate Tribunal raising the question of vires of Sections 2(bbb), 2(n) and 5-A of the Andhra Pradesh General Sales Tax Act. On the ground that it may not be competent for the petitioner to question the vires of the provisions of the statute before the Tribunal, the petitioner has filed the present application for the issue of a writ of certiorari to have the order of the Assistant Commissioner of Commercial Taxes dated 18th February, 1967, confirming the order of the Commercial Tax Officer, quashed.

2. Having regard to certain recent judgments of the Supreme Court, the vires of Sections 2(bbb),'2(n) and 5-A was not questioned before us at the hearing. The principal submission of Sri D. Venkatappayya Sastry, learned counsel for the petitioner, was that the petitioner was compelled by statute to provide and maintain a canteen for the use of the workers, that the canteen was not run with a profit-motive but was merely intended to provide amenities to workers and, therefore, it could not be said that there were any sales when food and drink were supplied to workers at the canteen. According to the learned counsel, the petitioner never carried on 'business' and never intended to carry on any business in food and drink.

3. It is necessary to trace the course of legislation as well as judicial precedent in order to appreciate the submission made by the learned counsel for the petitioner. Under the Madras General Sales Tax Act of 1939, which was in force in the Andhra area of the State of Andhra Pradesh till 1957, and under the Hyderabad General Sales Tax Act of 1950, which was in force in the Telangana area of the State of Andhra Pradesh till 1957, the word 'business' was not denned, but sale was denned in so far as it is relevant to mean, with all grammatical variations and cognate expressions, every transfer of property in goods by one person to another in the course of trade or business for cash or for deferred payment or for other valuable consideration. A dealer was denned as meaning any person carrying on the business of buying, selling, supplying or distributing goods directly or otherwise. Neither the definition of sale nor the definition of dealer indicated that a profit-motive was not necessary. 'Business' was not originally denned in the Andhra Pradesh General Sales Tax Act of 1957, but it came to be denned by an amending Act of 1966 to which we shall refer later. In Gannon Dunkerley and Co. v. The State of Madras [1954] 5 S.T.C. 216 at 242, a question arose before the High Court of Madras whether the assessee-company which was engaged in the business of execution of contracts for construction of buildings, bridges, etc., was liable to pay tax on the value of the food-grains which it supplied to its workmen for the benefit of the workmen on a non-profit basis. The cost of the food-grains supplied to the workmen was debited against their wages. Satyanarayana Rao and Rajagopalan, JJ., observed that the word 'business' must be understood in a commercial sense as involving an activity to earn profit and held that the supply of food-grains to the workers by the company was not carried out with a view to earn profit and in fact no profit accrued and, therefore, the company was not liable to pay sales tax. In the course of their discussion they observed :.it cannot be disputed that the word 'business' is used in the sense of carrying on continuous trading operations with a view to earn profit. He may not actually obtain profit and the business may end in loss. The test is not whether he actually gets profit or loss but the object with which the trading activity is carried on. If we omit the expression 'who carries on the business of in the definition, of dealer, it would only mean that a dealer is a person who merely buys or sells goods. The object of the Act is not to impose tax upon such a person. The words 'buying and selling' are qualified by the expression 'carries on the business of. The context, therefore, requires that the word must be understood in a restricted and commercial sense that the activity was with a view to earn profit.

4. Later again they observed :

'Trade' has been explained, to quote the passage where it was considered in the Concise Oxford Dictionary as 'business, especially mechanical or mercantile employment as opposed to profession carried or as means of livelihood or profit'. The meaning of commerce as given by the same dictionary is 'exchange of merchandise, especially on large scale'. In ordinary parlance, trade and commerce carry with them the idea of purchase and sale with a view to make profit. If a person buys goods with a view to sell them for profit, it is an ordinary case of trade. If the transactions are on a large scale it is called commerce. Nobody can define the volume of business, which would convert a trade into commerce. But everybody understands the distinction between the two with sufficient vagueness. From a review of these authorities, it seems to us clear that the word 'business' employed in the definition of 'dealer' in the Madras General Sales Tax Act is used in the sense of buying or selling goods with a view to earn profit.

5. In Sree Meenakshi Mills Ltd. v. State of Madras [1954] 5 S.T.C. 291 the assessee was a company engaged in the business of manufacture of textiles. The company ran a canteen for the benefit of its employees where food and refreshments were sold on a non-profit basis. The canteen was run in pursuance of the requirements of Section 46 of the Factories Act and the Rules made thereunder. On those facts, Satyanarayana Rao and Rajagopalan, JJ., came to the conclusion that it was impossible to consider the assessee as a dealer in respect of the turnovers relating to the sale of food-stuffs and refreshments as the company did not carry on business and as the sales were not in the course of any trade or business of the assessee within the meaning of the General Sales Tax Act. The learned Judges referred to their earlier judgment in the case of Gannon Dunkerley and Co. Ltd. v. The State of Madras [1954] 5 S.T.C. 216 and reiterated their earlier conclusion that the word 'business' was used in the Act in the commercial sense, an integral part of which was the motive to make profits by sales or purchases, and if this was wanting, a person buying or selling would not be a 'dealer'. The decision of the learned Judges was therefore based on the circumstance that there was no profit-motive involved in the sales and not on any theory that the sales were compulsory sales made in order to comply with statute.

6. In The Trustees of the Port of Madras v. The State of Madras [1960] 11 S.T.C. 224 the facts were that under the Port Trust Act, the Port Trust was under an obligation to supply water to ships calling at the Madras harbour. The Port Trust, which was supplied water by the Corporation of Madras at certain rates, in its turn supplied water to ships calling at the port on payment of charges. The question arose whether the Port Trust Act could be subjected to sales tax on the supply of water to ships. On an examination of the Port Trust Act, the learned Judges came to the conclusion that the Madras Port Trust was not 'conceived as a commercial body for making profits by sale of goods' and that 'no profit-motive could be implied in the levy of charges for the water supplied to the ships'. The learned Judges referred to the earlier decisions of the Madras High Court in Gannon Dunkerley and Co. v. State of Madras [1954] 5 S.T.C. 216 and Sree Meenakshi Mills Ltd. v. State of Madras [1954] 5 S.T.C. 291 and held that in order to-become liable to sales tax a dealer should be one who buys and sells goods with the object or intention of making a profit. They held that as there was no profit-motive in the supply of water by the Port Trust, sales tax was not leviable. They referred to the statutory obligation of the Port Trust to supply water but that was only to emphasise the lack of a profit-motive.

7. In I.C.F. Canteen v. Deputy Commercial Tax Officer [1962] 13 S.T.C. 827 the question arose whether sales of food and drink to the workmen of the assessee at the canteen maintained by the assessee in pursuance of Section 46 of the Factories Act and the Factories Rules could be assessed to sales tax. Veeraswami, J., held that the Factories Rules showed that there was 'a complete absence of profit-motive in the service by the canteen to its workers, of food and drink at controlled charges'. The learned Judge held that the assessee was not a dealer as it did no 'business' in a commercial sense with a view to make profit. It was pointed out to the learned Judge that 'business' was defined by the Madras Sales Tax Act of 1959 and that under the new Act, actual accrual of profit was not essential. The learned Judge rightly observed that it was never thought that actual accrual of profit was necessary. What was necessary was a profit-motive and the Act of 1959, therefore, did not alter the legal position.

8. In 1964, the definition of 'business' in the Madras General Sales Tax Act of 1959 was amended and this definition was incorporated almost verbatim in the Andhra Pradesh General Sales Tax Act of 1957 by an amendment in 1966. The definition in the Madras Act is as follows :

'Business' includes-

(i) any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern ; and

(ii) any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern.

9. After the amendment of 1964 the question arose in Deputy Commissioner of Commercial Taxes v. Thirumagal Mills Limited [1967] 20 S.T.C. 287 whether the assessee, a cotton yarn manufacturing company could be assessed to sales tax on the 'turnover' relating to a fair price shop run by the assessee for the benefit of its employees. Notwithstanding the amended definition of 'business', Veeraswami and Ramaprasada Rao, JJ., held that the assessee could not be assessed as the assessee was not 'carrying on the business of selling commodities in the fair price shop in a trade or commercial sense'. The amended definition of 'business' was considered in the following manner:

The primary requisite of 'business' as denned even under Madras Act 15 of 1964 is that it should be a trade or commerce or adventure or concern in the nature of trade or commerce. Presence or absence of profit will not matter. But the activity must be of commercial character and in the course of trade or commerce. The second clause in the definition of 'business', as it appears to us, is still one invested with commercial character, for the reference is to any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern. Unless the transaction is connected with trade, that is to say, it has something to do with trade or has the incidence or elements of trade or commerce, it will not be within the definition. The words 'in connection with or incidental or ancillary to' in the second part of the definition of 'business', in our opinion, still preserve or retain the requisite that the transaction should be in the course of business understood in a commercial sense. The intention of Madras Act 15 of 1964 does not appear to be to bring into the tax net a transaction of sale or purchase which is not of a commercial character.

10. We find ourselves unable to agree with the learned Judges. We think that the learned Judges have not paid sufficient attention to the word 'such' occurring in the second part of the definition. 'Such trade, commerce, manufacture, adventure or concern' must obviously refer to the 'trade, commerce, manufacture, adventure or concern' mentioned in the first part of the definition, that is to say, 'trade, commerce, manufacture, adventure or concern' of which a motive to make gain or profit is not an essential requisite. We do not think that it is permissible to hold that there was no 'business' in the commercial sense of 'business' with a motive to make profit, when such motive has-been expressly declared unnecessary by the Legislature. We think that under both parts of the definition, profit-motive is now immaterial and the concept of 'business' in the commercial sense put forward and accepted in the earlier cases must now be abandoned. We, therefore, hold that in the present cases too, in view of the definition of 'business' introduced into the Andhra Pradesh Act by the amendment Act of 1966, proof of profit-motive is unnecessary to constitute 'business'.

11. The next submission of Sri Venkatappayya Sastry was that even if profit-motive was not now an ingredient of 'business', it must still be established that the assessee intended to do business in food and drink before it could be subjected to the levy of sales tax. According to Sri Venkatappayya Sastry, what was done by the assessee was done under compulsion because the provisions of the Factories Act made it penal for the assessee not to provide and maintain a canteen for the use of the workers. Sales of food and drink effected at the canteen were 'compulsory' and not voluntary sales and it could not, therefore, be said that the petitioner intended to do any business by supplying food and drink at the canteen to their workers. We do not agree with the learned counsel for the petitioner that to obey the law is to be compelled to do a thing. It would indeed be a most pernicious principle to say that a person does not intend to do a thing merely because he does that thing in obedience to the law and to advance the law. It may be that the law puts him in peril if he does not do the thing, but that does not mean that when he does it, he does not intend to do it. The compulsion, or it may be more appropriate to say, the inducement resulting from the fear of penal consequences is not a compulsion which would vitiate a contract. Under Section 14 of the Contract Act, a consent is said to be free when it is not caused by (1) coercion, as defined in Section 15, or (2) undue influence, as defined in Section 16, or (3) fraud, as defined in Section 17, or (4) misrepresentation, as defined in Section 18, or (5) mistake subject to the provisions of Sections 20, 21 and 22. Section 15 defines coercion as 'committing or threatening to commit, any act forbidden by the Indian Penal Code, or the unlawful detaining, or threatening to detain any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.'

12. A contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. This is how undue influence is defined in Section 16 of the Indian Contract Act. It is clear that the supply of food and drink by the company to its workmen was not the result of coercion or undue influence as defined in Sections 15 and 16 of the Contract Act.

13. The learned counsel relied on the decisions of the Supreme Court in New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar [1963] 14 S.T.C. 316 (S.C.) and The State of Gujarat v. Raipur . [1967] 19 S.T.C. 1 (S.C.) In the first case the facts were that the assessee despatched sugar to the authorised agents of the State of Madras in compliance with the direction issued by the Sugar Controller exercising powers under the Sugar and Sugar Products Control Order, 1946. The Sales Tax Officer, Darbhanga, included the value of the sugar so despatched in the taxable turnover of the petitioner. Their Lordships of the Supereme Court held that since there was never any negotiation between the manufacturer and the State of Madras and the sugar was despatched pursuant to the direction of the Controller, there was no offer and no acceptance and, therefore, there was no contract of sale. It was, therefore, held that the turnover relating to the despatch of sugar by the company to the State of Madras could not be included in the taxable turnover of the company. Their Lordships observed :

According to Section 4 of the Sale of Goods Act to constitute a sale of goods, property in goods must be transferred from the seller to the buyer under a contract of sale. A contract of sale between the parties is therefore a prerequisite to a sale. The transactions of despatches of sugar by the assessees pursuant to the directions of the Controller were not the result of any such contract of sale. It is common ground that the Province of Madras intimated its requirements of sugar to the Controller, and the Controller called upon the manufacturing units to supply the whole or part of the requirement to the Province. In calling upon the manufacturing units to supply sugar, the Controller did not act as an agent of the State to purchase goods ; he acted in exercise of his statutory authority. There was manifestly no offer to purchase sugar by the Province, and no acceptance of any offer by the manufacturer. The manufacturer was under the Control Order left no volition ; he could not decline to carry out the order; if he did so he was liable to be punished for breach of the order and his goods were liable to be forfeited. The Government of the Province and the manufacturer had no opportunity to negotiate, and sugar was despatched pursuant to the direction of the Controller and not in acceptance of any offer by the Government..A contract of sale postulates exercise of volition on the part of the contracting parties and there was in complying with the orders passed by the Controller no such exercise of volition by the assessees...

To infer a contract from the compulsory delivery of sugar and acceptance thereof would be to ignore the true position of the parties, and the circumstances in which goods were delivered.

14. This case is not of any real assistance to the petitioner because it was a case whore the company and the Government never met face to face or through an agent. There was never any privity of contract between them. We do not think when their Lordships said that a contract of sale postulated exercise of volition on the part of the contracting parties and that in complying with the orders passed by the Controller, there was no such exercise of volition, their Lordships intended to lay down any broad proposition that there could never be a contract of sale when the parties were merely complying with statutory directions. This position was made clear by their Lordships themselves in later cases to which we shall presently refer. The decision in New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar [1963] 14 S.T.C. 316 (S.C.) was a decision peculiar to the facts of that case and is not an authority for. the general proposition for which the learned counsel for the petitioner contended. In the present case, the facts are altogether different. The. company and the workmen come together every time when an article of food or drink is sold and the price is paid for it. There is a privity of contract between the company and the workmen whenever an article of food or drink is supplied and the price for it is received.

15. In The State of Gujarat v. Raipur . [1967] 19 S.T.C. 1 (S.C.) their Lordships held that a company which disposed of miscellaneous old and discarded items could not be said to have carried on the business of selling those items of goods. It was observed :

Whether a person carries on business in a particular commodity must depend upon the volume, frequency, continuity and regularity of transactions of purchase and sale in a class of goods and the transactions must ordinarily be entered into with a profit-motive.... To infer from a course of transactions that it is intended thereby to carry on business ordinarily the characteristics of volume, frequency, continuity and regularity indicating an intention to continue the activity of carrying on the transactions must exist. But no test is decisive of the intention to carry on the business : in the light of all the circumstances an inference that a person desires to carry on the business of selling goods may be raised.

16. We do not see how this decision assists the petitioner. All that their Lordships laid down was that an intention to carry on business must be inferred from circumstances such as volume, frequency, continuity and regularity of the transactions of purchase and sale and that on the facts of the case before them no such intention could be inferred. In the present case all the circumstances indicated by their Lordships of the Supreme Court as throwing light on the intention to carry on business are present.

17. We may now refer to three other decisions of their Lordships of the Supreme Court. The first of these cases, Indian Steel and Wire Pro-duels Limited v. Stale of Madras A.I.R. 1968 S.C. 478 was concerned with the question whether the supply of certain products by the assessee to various persons, under orders of the Controller exercising powers under the Iron and Steel (Control of Production and Distribution) Order of 1941, could be included in the taxable turnover of the assessee. The contention of the assessee was that it was the province of the Controller to determine the persons to whom the goods were to be supplied, the price at which they were to be supplied, the manner in which they were to be transported and the mode in which flu: payment of the price was to be made and, therefore, there was no volition on the part of the assessee, and the supplies could not constitute sales within the meaning of the Sale of Goods Act. Their Lordships while holding that the circumstances pointed out by the assessee existed, observed that it would not be correct to say that tin.: transactions were completely regulated and controlled by the Controller leaving no room for mutual assent because all orders were booked subject to the assessee's terms of business and general understanding in force at the time of booking the orders and despatching the goods, and it was also open to the appellant to fix the time and mode of payment of the price of the goods supplied. On that finding, their Lordships held that the transactions were sales and were rightly included in the taxable turnover of the assessee. Hegde, J., speaking for the court referred with approval to a passage in the ''Law of Contract' by Cheshire and Fifoot where the learned authors stated : 'The background of the contract law, social, political and economic has changed. Laissez-faire; as an ideal has been supplanted by 'social security' ; and social security suggests status rather than contract. The State may thus compel persons to make contracts, as where, by a series of Road Traffic Acts from 1930 to 1960, a motorist must insure against third-party risks; it may, as by the Kent Restriction Acts, prevent one party to a contract from enforcing his rights under it; or it may empower a Tribunal either to reduce or to increase the rent payable under a lease. In many instances a statute prescribes the contents of the contract. The Money-Lenders Act, 1927, dictates the terms of any loan caught by its provisions; the Carriage of Goods by Sea Act, 1924, contains six pages of rules to be incorporated in every contract for 'the carriage of goods by sea from any port in Great Britain or Northern Ireland to any other port' ; the Hire-Purchase Act, 1938, inserts into hire-purchase contracts a number of terms which the parties are forbidden to exclude ; successive Landlord and Tenant Acts from 1927 to 1954 contain provisions expressed to apply 'notwithstanding any agreement to the contrary'.'

18. Hegde, J., then proceeded to state :

It would be incorrect to contend that because law imposes some restrictions on freedom to contract, there is no contract at all. So long as mutual assent is not completely excluded in any dealing, in law it is a contract. On the facts of this case for the reasons already mentioned, it is not possible to accept the contention of the learned counsel for the appellant that nothing was left to be decided by mutual assent.

19. Referring to the case of New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar [1963] 14 S.T.C. 316 (S.C.) it was observed :

On the basis of those facts, the court came to the conclusion that there was no room for mutual assent in those transactions. The facts of the present case are materially different from the facts of that case. Hence the ratio of that decision does not apply to the facts of the present case. Whether in a given case there was mutual assent or not is a matter to be decided on the facts of that case.

20. In Andhra Sugars Ltd. v. State of Andhra Pradesh A.I.R. 1968 S.C. 599 the facts were that under the Andhra Pradesh Sugar-cane (Regulation of Supply and Purchase) Act and the Rules made thereunder, a cane-grower in a factory zone was free to sell or not to sell sugar-cane to the factory. He might consume it or he might process it into jaggery and then sell the finished product. If he offered to sell his cane, the occupier of the factory was bound to enter into an agreement with him on the prescribed terms and conditions and to buy cane, pursuant to the agreement, in conformity with the instructions issued by the Cane Commissioner. The assessee-factory contended that as it was compelled by law to buy cane from the cane-growers, the purchases were not made under agreements and were not taxable under entry 54, List II, Schedule VII of the Constitution. Their Lordships repelled the argument stating :

Under Section 4(1) of the Indian Sale of Goods Act, 1930, a contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. By Section 3 of this Act, the provisions of the Indian Contract Act, 1872, apply to contract of sale of goods save in so far as they are inconsistent with the express provisions of the later Act... under Section 10 of the Indian Contract Act all agreements are contracts if they are made by the free consent of parties competent to contract for a lawful consideration and with a lawful object and are not by the Act expressly declared to be void. Section 13 defines consent. Two or more persons are said to consent when they agree upon the same thing in the same sense. Section 14 defines free consent. Consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake as defined in Sections 15 to 22. Now, under Act No. 45 of 1961 and the Rules framed under it, the cane-grower in the factory zone is free to make or not to make an offer of sale of cane to the occupier of the factory. But if he makes an offer, the occupier of the factory is bound to accept it. The resulting agreement is recorded in writing and is signed by ,the parties. The consent of the occupier of the factory to the agreement is not caused by coercion, undue influence, fraud, misrepresentation or mistake. His consent is free as defined in Section 14 of the Indian Contract Act though he is obliged by law to enter into the agreement. The compulsion of law is not coercion as denned in Section 15 of the Act. In spite of the compulsion, the agreement is neither void nor voidable. In the eye of the law, the agreement is freely made. The parties are competent to contract. The agreement is made for a lawful consideration and with a lawful object and is not void under any provisions of law. The agreements are enforceable by law and are contracts of sale of sugar-cane as denned in Section 4 of the Indian Sale of Goods Act. The purchases of sugar-cane under the agreement can be taxed by the State Legislature under entry 54, List II.

21. Referring to the case of New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar [1963] 14 S.T.C. 316 (S.C.) Bachawat, J., observed :

On the special facts of that case, the majority decision was that there was no offer and acceptance and no contract resulted. That decision should not be treated as an authority for the proposition that there can be no contract of sale under compulsion of a statute. It depends upon the facts of each case and the terms of the particular statute regulating the dealings whether the parties have entered into a contract of sale of goods. Under Act No. 45 of 1961, a cane-grower makes an offer to the occupier of the factory directly and the latter accepts the offer. The parties then make and sign an agreement in writing. There is thus a direct privity of contract between the parties. The contract is a contract of sale and purchase of cane, though the buyer is obliged to give his assent under compulsion of a statute. The State Legislature is competent to tax purchases of canes made under such a contract.

22. In State of Rajasthan v. Karam Chand Thappar and Bros. [1969] 23 S.T.C. 210 (S.C.), their Lordships of the Supreme Court reiterated what was stated in Indian Steel and Wire Products Limited v. State of Madras A.I.R. 1968 S.C. 478 and Andhra Sugars Ltd. v. State of Andhra Pradesh A.I.R. 1968 S.C. 599. It is unnecessary to refer to the facts of the case. It is clear from these decisions that the mere fact that goods are supplied pursuant to statutory directions does not make the supplies not 'sales' within the meaning of the Sale of Goods Act and for the purpose of the Sales Tax Act. In order that a transaction may not be a sale, it seems to be the opinion of their Lordships, the whole of the transaction must be controlled by statute. In the present case, though the company was under an obligation to provide and maintain a canteen for the use of the workers and though the running of the canteen was to be subject to the Rules made under the Factories Act, the transactions were not regulated solely by statute. There was a large amount of freedom left to the parties. Section 46 of the Indian Factories Act merely obliges a factory to provide and maintain a canteen for the use of the workers. It also provides for the making of Rules regarding (1) the food-stuffs to be served in the canteen and charges which may be made therefor, and (2) the constitution of a managing committee and representation of the workers in the management of the canteen. Rules were made under Section 46 of the Act. Rule 68 provides that food, drink and other items served in the canteen shall be served on a non-profit basis and that the prices charged shall be subject to the approval of the canteen managing committee. If the committee did not approve the price-list, the price-list was to be sent to the Chief Inspector of Factories for approval. Rule 70 provides for the constitution of a managing committee who consists of an equal number of persons nominated by the factory and elected by the workers. The committee is to be a consultative committee in the matter of, '(1) quality and quantity of food-stuffs to be served in the canteen, (2) the arrangement of the menus, (3) the times of meals in the canteen, and (4) in other matters as may be directed by the committee.' It is thus seen from the Act and the Rules that while the occupier of a factory is obliged to maintain, a canteen and serve food and drink on a non-profit basis, there is a large amount of discretion in all other matters such as the choice of food and drink to be served, the prices at which they may be served, the time when they may be served, etc. In these matters, the voice of the managing committee, half the members of which are the occupier's own nominees, is to be that of an adviser only. Having regard to these circumstances, we are of the opinion that the transactions of supply of food and drink to workmen in the canteen maintained by the company, in pursuance of the Indian Factories Act and the Rules, are sales and do constitute business for the purposes of the Andhra Pradesh General Sales Tax Act.

23. In the result, the writ petitions are dismissed with costs. Advocate's fee Rs. 100 in each.


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