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Madura Coats Ltd. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberT.R.C. Nos. 10, 11, 12 and 13 of 1976
Judge
Reported in[1978]41STC333(Ker)
AppellantMadura Coats Ltd.
RespondentState of Kerala
Appellant Advocate K.A. Nayar,; Menon and; Pai, Advs.
Respondent AdvocateGovernment Pleader
DispositionPetition dismissed
Excerpt:
- - we agree with the learned government pleader that this circumstance also affords strong indication that the property in the cones passed on to the assessee and repassed to the madura mills company at the time when the cones are returned. but as the matter has not been dealt with or considered in the tribunal's order, we are unable to hold that there was a failure to decide any question of law, rather than a failure to urge the same......the order is one of original assessment. the assessee-company receives yarns from messrs. madura mills company ltd. the yarn supplied is wound round cones. the cones are passed on to the assessee-company. (we are purposely using the expression 'passed on' and avoiding the expression 'sold' at this stage). at the time the cones are passed on a debit note is made by the madura mills company; and at the time of return of the cones a credit note is made. these notes are with respect to the cost of the cones. the relevant terms of the contract between the assessee and the madura mills ltd., are as follows :(i) we will be supplying you approximately 2/3 lakhs kilograms of yarn regularly per month from our mills at madurai, tuticorin and ambasamudram.(ii) we will be checking the quality of.....
Judgment:

V.P. Gopalan Nambiyar, C.J.

1. These tax revision cases are by the Madura Coats Limited, Koratti, a public limited company. The assessment years are 1969-70, 1970-71, 1971-72 and 1972-73. The orders for the first three assessment years are by way of reopening the assessment; and in the last assessment year, the order is one of original assessment. The assessee-company receives yarns from Messrs. Madura Mills Company Ltd. The yarn supplied is wound round cones. The cones are passed on to the assessee-company. (We are purposely using the expression 'passed on' and avoiding the expression 'sold' at this stage). At the time the cones are passed on a debit note is made by the Madura Mills Company; and at the time of return of the cones a credit note is made. These notes are with respect to the cost of the cones. The relevant terms of the contract between the assessee and the Madura Mills Ltd., are as follows :

(i) We will be supplying you approximately 2/3 lakhs kilograms of yarn regularly per month from our mills at Madurai, Tuticorin and Ambasamudram.

(ii) We will be checking the quality of yarn before despatch.

(iii) Yarn will be supplied on cones, cheeses, etc. and will be packed in gunny bags with plywood stiffeners to prevent damage in transit.

(iv) The cones or cheeses and plywood stiffeners are returnable.

(v) The rate for yarn agreed between us is consolidated rate including the cost of cones, stiffeners and other packing materials.

(vi) You will be given credit for cost of cones, stiffeners, etc., at rates agreed between us as and when returned.

(vii) It is agreed that the sale is for actual content of the yarn.

These clauses are found set down in the judgment of the Sales Tax Appellate Tribunal. On these clauses and on these facts, the question considered was whether there was a sale in respect of the cones which were returned by the assessee-company to the Madura Mills Ltd. The Tribunal, agreeing with the Deputy Commissioner, concurred in finding that there was a sale of the cones and that the turnover in respect of the value of the cones was assessable in the hands of the revision petitioner. This conclusion is assailed before us in these tax revision cases.

2. In these revision cases, the question pointedly arises with respect to the return of the cones by the assessee to the Madura Mills Ltd. Counsel for the revision petitioner relied on Clauses 4 and 7 and argued that there was an obligation to return the cones and that the sale price is worked out only on the actual content of the yarn, without taking into account the value of the cones. No doubt Clauses 4 and 7 are to this effect. But, as pointed out by the learned Government Pleader, Clause 6 seems unmistakably to indicate that the cost of the cones will be given credit to 'as and when' they are returned. As the learned Government Pleader contended, these expressions seem to negative 'any positive and binding obligation on the part of the assessee to return the cones. On the other hand, they seem to indicate that when the cones are returned credit will be given for their cost. We are also struck by the admitted fact that the debit note and the credit note are issued at the time when the cones are passed on and when they are returned. We agree with the learned Government Pleader that this circumstance also affords strong indication that the property in the cones passed on to the assessee and repassed to the Madura Mills Company at the time when the cones are returned. In this view, the conclusion of the Appellate Tribunal is correct and we see no ground for interference in this revision.

3. The decision in Dyer Meakin Breweries' case [1972] 29 S.T.C. 69, on which counsel for the assessee relied, has no application. There, on the facts, the transaction with respect to the bottles was held to be only a deposit and not a sale. There are no grounds to hold so in this case.

4. Counsel for the assessee raised a point that the assessee can be assessed to sales tax on the turnover or the value of the cones only if it is shown to be a 'dealer' in cones. We do not find this point having been dealt with in the order of the Sales Tax Appellate Tribunal or of the Deputy Commissioner and the Sales Tax Officer. The memorandum of grounds of the assessee to the Sales Tax Appellate Tribunal seems to raise this ground. But as the matter has not been dealt with or considered in the Tribunal's order, we are unable to hold that there was a failure to decide any question of law, rather than a failure to urge the same. We have also some doubt whether it is necessary to establish that the assessee must be a dealer in cones before it can be assessed to sales tax in respect of its cost, on the facts disclosed in the present case. We are not, however, expressing our final view on the question. We dismiss these revision cases with no order as to costs.


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