Fakkir Mohammed, J.
1. The revision petitioner is the assessee. As against the total and taxable turnover returned by the assessee, the assessing officer of the Commercial Tax Department determined the total and taxable turnover as Rs. 2,78,88,190.87 and Rs. 2,47,14,416.87 respectively in the assessment proceedings dated 30th March, 1972, for the year 1970-71. The assessees are M/s. Indian Steel Rolling Mills Limited, dealers in iron and steel. The assessing officer had intially granted exemption on export amounting to Rs. 8,89,938.80. A check of the records filed in support of the claim for exemption made by the assessee revealed that M/s. Rallis India Limited, Madras, had entered into a contract with M/s. Nationale De Siderurgie, Algeria (hereinafter referred to as the 'foreign buyer'), in Algeria, and that in order to fulfil the export contract they had requested the assessee to export the iron and steel goods to the importer in Algeria. The invoices were raised by the assessee on M/s. Rallis India Limited only. The assessee did not raise invoices on the Algerian importer. The goods were shipped of f.o.b. condition in the port of Madras on behalf of M/s. Rallis India Limited. There was no privity of contract between the assessees and the foreign importer. Therefore, the Joint Commercial Tax Officer, Explanade-II Circle, thought that the exemption granted to the assessee required reconsideration in the light of the decision of this Court in Erattamuthu Nadar v. State of Tamil Nadu  28 STC 649 and proposed to disallow the exemption already granted on the turnover of Rs. 8,89,938.80 and to include the same in the taxable turnover at 3 per cent under the Tamil Nadu General Sales Tax Act, 1959.
2. The assessee had also realised Rs. 9,861 as profit on sale of capital assets during the year 1970-71 and the Joint Commercial Tax Officer proposed to treat the sale value of the fixed assets as exigible to tax at 3 per cent. The profit and loss account for the year 1970-71 also indicated the receipt of Rs. 1,58,976 as Government subsidy, earned on export transaction and this was also sought to be included in the turnover taxable at 3 per cent. Therefore, a notice was issued to the assessee for the proposed reassessment and the assessee objected to the above proposals in their letter dated 24th March, 1976. Overlooking the objections of the assessee, the Joint Commercial Tax Officer passed an order dated 25th May, 1976, and held that the assessee is not entitled to the claim of export exemption, and dropped their proposal relating to Government subsidy amounting to Rs. 1,58,976.00 and the sale proceeds of a car.
3. Aggrieved by the said revised assessment, the assessee filed Appeal No. 215 of 1976 before the Appellate Assistant Commissioner without success. Not satisfied with the decision of the Appellate Assistant Commissioner, the assessee went on appeal before the Sales Tax Appellate Tribunal in T.A. No. 758 of 1976 and the same was dismissed on 19th September, 1977. Aggrieved by the order of the Tribunal, the assessee has come on revision before this Court under section 38 of the Tamil Nadu General Sales Tax Act.
4. The contention of the petitioners is that they negotiated an order with the Algerian importer through M/s. Rallis India Limited, that the terms of the contract were communicated to the petitioners from time to time by M/s. Rallis India Limited, who issued a confirmation order for having sold the iron and steel articles for the account of the petitioners to the foreign buyer, that M/s. Rallis India Ltd. took out an export licence and obtained a letter of authority in favour of the petitioners, that the petitioners directly shipped the goods to Algeria and that the shipping documents indicated that the petitioners are the shippers. According to the petitioners they alone raised the invoices on M/s. Rallis India Ltd., and that the petitioners had sent a declaration to the State Bank of India to facilitate M/s. Rallis India Ltd. The petitioners have attacked the finding of the Appellate Tribunal with respect to their observation that there was no specific assignment of the letter of credit in favour of the petitioners, that the respondent (sic) had no authority for direct negotiation of documents and that the said finding would lead to the theory of two sales, one by the petitioners and another by M/s. Rallis India Ltd., to the same Algerian importer. The petitioners contend that they should be treated as de facto and real exporter to the foreign buyer and have requested for the turnover to be deemed to be towards export.
5. The learned counsel for the assessee has not given serious thinking to the other objections, viz., that the assessment was barred by limitation as the final order was passed beyond five years or that the assessing officer had no jurisdiction to revise the assessment under section 16(1)(a) on the ground that the disputed turnover was exempted in the earlier proceedings under section 12 of the Act. Once if this Court comes to the conclusion that the petitioner is not an exporter, then the abovesaid objections will automatically stand answered against the assessee. Several documents filed on the side of the petitioners require a careful consideration to give a finding on the main and important point in dispute. The main point in dispute is, whether there is any privity of contract between the petitioners and the foreign buyer and whether the petitioners have acted as an exporter or as an agent of M/s. Rallis India Limited. The assessee has produced the original set of documents before the Tribunal. The first and foremost document which is relied on for the purpose of the export of iron articles by the petitioners is the letter of the petitioners dated 15th February, 1969, addressed to M/s. Tata Iron & Steel Co. Limited, Calcutta. In the abovesaid letter, the assessee had requested the Tata Iron & Steel Co. Limited for the allotment and despatch of 1600 tons plus 500 tons of billets to Tiruninravur within the month of February, 1969, in order to enable the petitioners to clear the Algerian order in three months, in addition to the usual monthly quota supplied by Tata Iron & Steel Co. Limited.
6. The next important document is the message sent by M/s. Rallis India Limited, which are found at pages 44 and 45 of the typed set of documents. In the message dated 28th July, 1974, it is stated as follows :
'Please hand over the following message to Mr. C. R. Ramaswamy, Chairman, Indian Steel Rolling Mills Ltd. Quote I give below true copy of our offer dated 21st June, 1969, for 6000 tons of torsteel to Algiers and the confirmatory acceptance from our buyers dated Algiers 27th June, 1969.'
7. The disputed turnover relates to the requirement expressed by M/s. Rallis India Limited. In the above message, wherein M/s. Rallis India Ltd., have claimed Algiers as 'our buyers'. Therefore even the initial message sent by the M/s. Rallis India Ltd. to the petitioners has given quietus to the point agitated by the petitioners, to say, that they are the exporters through M/s. Rallis India Limited, in view of the assertion made in the above said message calling the foreign buyer, Algiers, 'as our buyers', had given an offer to M/s. Rallis India Limited on 21st June, 1969, for the supply of 6000 tons of torsteel.
8. The learned counsel for the petitioners then referred to the letter of M/s. Rallis India Limited, dated 21st June, 1969, addressed to the foreign buyer in Algeria offering to sell torsteel at the rates quoted therein, specifying the conditions relating to letter of credit, payment and bill of lading. M/s. Rallis India Limited have requested the Algerian buyer to open firm, irrevocable, assignable and divisible letter of credit permitting third party bills of lading. At page 47 of the typed set the reply received from the foreign buyer is found and the true translation of the same is found at page 48. In the abovesaid letter by the foreign buyer to M/s. Rallis India Limited, they have confirmed the order placed for 6000 tons of torsteel to be supplied in monthly instalments of 1500 tons, as per the conditions stipulated by M/s. Rallis India Limited in their telex dated 21st June, 1969. The above confirmation letter of the foreign buyer also shows that the negotiation took place only between the foreign buyer and M/s. Rallis India Limited, and that the foreign buyer had nothing to do with the petitioner.
9. Next we find another letter of the foreign buyer addressed to M/s. Rallis India Limited dated 27th June, 1969, confirming once again the firm order on the conditions prescribed by M/s. Rallis India Ltd. in their telex message. It is after this letter, we find the letter of the petitioners dated 11th September, 1969, addressed to Thiru K. Gurumurti of Rallis India Ltd., New Delhi, in which the petitioners have informed that they had concluded direct order through Tata Exports with the Algerian buyer. The message reads as follows :
'From Ramaswamy to Gurumurti just concluded direct order through Tata Exports with your Algerian buyer 2000 T at price net dollars 111 plus renelu extra for Madras request your obtaining same terms for 6000 T understand getting export licence otherwise difficult as floor prices have been increased by another 12 dollars from yesterday.'
10. In the above letter the assessee had requested M/s. Rallis India Limited to obtain export licence for 6000 tons and has referred the foreign buyer as the buyer, of M/s. Rallis India Limited. Thus, the assessee has treated M/s. Rallis India Limited as the exporter to the Algerian buyer. M/s. Rallis India Limited have sent a reply message to the above message of the assessee on 12th September, 1969, mentioning that they had already sent a copy of the offer dated 21st June, 1969, and that the same has been accepted by the Algerian buyer by the message dated 27th June, 1969, and informing the assessee that any claim by way of extra price at 7 dollars per ton on the second 3000 tons, would bring in permanent damage of going back upon the firm commitments already made by both of them. M/s. Rallis India Ltd. felt that the suggestion of the assessee to claim 7 dollars per ton as extra price for the second consignment of 3000 tons of torsteel, having agreed already with the foreign buyer to settle at the agreed rate, will bring bad reputation to the assessee as well as to the Rallis India Limited. Evidently, the assessee could not write direct to the foreign buyer and demand extra price at 7 dollars per ton and hence had requested the real exporter, viz., M/s. Rallis India Limited, to make an additional claim.
11. A week thereafter M/s. Rallis India Limited, have sent a message to the assessee, conveying the text of the letter received from the Ministry of Steel to the effect that in view of the present shortage of billets no additional allocation of billets would be supplied to M/s. Rallis India Limited for executing the orders secured by them for the export of 6000 tons of torsteel to Algiers and that M/s. Rallis India Limited might approach Hindustan Steel Limited, Calcutta, who have been advised to offer up to 6000 tons of ingots subject to price and other terms to be mutually settled. Thus notwithstanding the treatment of M/s. Rallis India Limited as the exporter by the assessee themselves, the Ministry of Steel had also been informed that M/s. Rallis India Limited are the exporters and that the assessee was only an agent of M/s. Rallis India Limited for the purpose of executing the order obtained from the foregin buyer.
12. We have already referred to the suggestion made by the assessee to M/s. Rallis India Limited to demand extra price of 7 dollars per ton for the second consignment of 3000 tons in the message dated 12th September, 1969. In reply to that message, M/s. Rallis India Limited have sent a letter dated 22nd September, 1969, which is found at page 54 of the typed set, informing the assessee that M/s. Rallis India Limited had sent a telex to the Algerian importer conveying the demand for extra price of 7 dollars per ton. The copy of the message sent to Algerian importer has been enclosed with that letter. Thus Rallis India Limited has been treating the assessee only as their agent for the purpose of completing export contract entered into by them with the Algerian buyer. Rallis India Limited have got their own separate merchanting division and the correspondence between the assessee and Rallis India Limited proves the same. In the letter dated 24th September, 1969, by Rallis India Limited to the assessee, found at page 57 of the typed set, Rallis India Limited, have stated as follows :
'Further to the discussions we had today, we send herewith a copy of the telex invoice we have sent to our buyers asking them to open a confirmed irrevocable letter of credit for a value of Rs. 7,79,240. This has been arrived at on the basis of the prices as given in the enclosure, to which you have agreed. The prices include our commission of $ 2.50 per ton and a share of $ 1.50, which is expected in the freight savings.'
In the last paragraph of that letter Rallis India Limited have stated as follows :
'It is understood that all export incentives such as excise duty, customs, drawback, freight subsidy, freight differential, etc., will be your credit.'
13. Thus, there is a separate contract between the assessee and Rallis India Limited which can be deemed only as an agency contract for the purpose of enabling Rallis India Limited to fulfil their export contract with the foreign buyer.
14. Then we find the letter of the Rallis India Limited dated 23rd September, 1969, addressed to the Secretary, Steel Exporters Association, Calcutta, requesting for the issue of export licence for the export of 6000 tons of torsteel to Algiers in pursuance of the order that was booked on 23rd June, 1969, by exchange of international telex message, the copies of which are enclosed and stating that Rallis India Limited had secured an assurance from the assessee herein that they would execute the order on the basis of the price quoted by Rallis India Limited, and accepted by the Algerian buyer. In the penultimate paragraph, it is stated by the Rallis India Limited, that after obtaining special allocations of ingots from the Ministry of Steel, they had requested the foreign buyer to establish firm letter of credit. Thus it is seen that it is the Rallis India Limited, who had applied for export licence to the Steel Exporters Association, Calcutta, and not the assessee. The steps towards export sale have been taken only by the Rallis India Limited, and not by the assessee.
15. Next we come to the form of undertaking to be given by the exporters for issue of export licence, which is seen at page 60 of the typed set. The said form has been filled up and sent only by the Rallis India Limited stating as follows :
'We have booked the following export orders for shipment during November, 1969/April, 1970, subject to issue of export licence.'
16. It is Rallis India Limited, who have undertaken to submit to the Steel Exporters Association the following documents, viz., '(a) copy of bill of lading duly signed by steamer agency; (b) invoice on foreign buyers certified by our bankers and (c) evidence signed by our bankers establishing the amount of commission remitted overseas on the invoice.' At the bottom of the said form of undertaking a certificate has been given by the assessee to the following effect :
'We confirm that we have agreed to supply the above materials for export to M/s. SOCIETE NATIONALE DE SIDERURGIE, Algeria, on FOB/C & E basis. We are main Regd. and billet rerollers/ISI licensed rerollers and a LETTER OF AUTHORITY MAY BE RECOMMENDED TO BE ISSUED IN OUR FAVOUR.'
17. Thus, the assessee has expressed in clear terms that by agreement as agents for Rallis India Limited they are the registered and licensed billet rerollers to enable the Rallis India Limited to fulfil their export contract.
18. The next important document is the revised sale note of November, 1969, enclosed along with the letter dated 22nd November, 1969, by Rallis India Limited to the Algerian importer. Clause No. 6 of the revised sale note relates to payment of full invoice value against shipment documents without recourse. The general conditions contain in all 11 clauses of which clause 7 relates to arbitration and clause 10 relates to extension of letter of credit. In both the clauses, it is stipulated that any dispute under the contract between Rallis India Limited and the foreign importer shall be settled in accordance with the rules and regulations prevaling in India and that non-compliance with any of the terms and conditions of the contract shall give sellers the right to cancel the contract. The assessee has not got the said rights under the said contract. If any dispute had arisen, with reference to the export of the goods, it is Rallis India Limited who is responsible and answerable to the foreign importer and not the assessee, according to the terms of the contract. In the letter dated 24th November, 1969, found at page 73 of the typed set, the managing agents of Rallis India Limited have written to the Madras branch with a copy to the Delhi branch enquiring whether the order from the Algerian importer for 6000 tons had been confirmed and if so under what letter of credit. The above documents also go to support the view taken by the assessing authority as the appellate authority.
19. The main document relied on by the assessee is the letter of authority, which is found at page 76 of the typed set. The letter of authority issued by the Ministry of Foreign Trade & Supply, Government of India, Calcutta, dated 26th November, 1969, is addressed to M/s. Rallis India Limited, Madras, and not to the assessee, with copies to the Steel Exporters Association, Calcutta, the assessee and another. In the body of the letter of authority it is stated that M/s. Indian Steel Rolling Mills Limited, Madras, have been authorised to export 6000 metric tonnes against Export Licence No. I&E;/III/Exp/740/60-70 dated 26th November, 1969, issued, in favour of M/s. Rallis India Limited, 320, Linghi Chetty Street, Madras. Evidently, the assessee has been treated only as the export agent for M/s. Rallis India Limited and by no stretch of interpretation it can be deemed that the assessees are the exporters.
20. The next document relied on by the petitioners is the letter dated 28th November, 1969, written by M/s. Rallis India Limited to the petitioners, as seen in page 77 of the typed set. The portion relied on by the petitioners is in the middle part of the letter which reads as follows :
'We confirm having sold for your account to M/s. Societe Nationale De Siderurgie the following. ............................'
21. The above words are relied on to interpret that the assessee had intended to sell 6000 tons to the foreign buyer, though on the account of M/s. Rallis India Limited. The very mention of the words 'for your account' runs counter to the argument advanced in favour of the assessee. It can only mean that on behalf of the Rallis India Limited, the assessee had undertaken the job of exporting the materials to the foreign importer for which account had been opened in the name of M/s. Rallis India Limited and not in the name of the foreign importer. Thus, the above letter also does not support the contention of the petitioners.
22. The last document relied on by the petitioners is the invoice dated 10th June, 1970, found at page 85 of the typed set. Even at the outset it is seen that the invoice has been raised in the name of M/s. Rallis India Limited only, though below the name of M/s. Rallis India Limited the Algerian importers address is also typed. The earlier documents, viz., letter of credit, export licence and the letter of authority, given by the Rallis India Limited on 26th November, 1969, have been mentioned. The other documents filed in the case do not support the contention of the petitioners.
23. Thus, all the documents in the case only establish the fact that M/s. Rallis India Limited are the seller-exporter of 6000 tons of torsteel to the Algerian importer, that in order to fulfil the export contract M/s. Rallis India Limited have purchased the materials from the assessee treating them as their agent for the purpose of executing the job of export giving certain benefits to the assessee by single agency contract, stipulating a percentage of profit, viz,. 4 dollars per ton, that M/s. Rallis India Limited had undertaken all the responsibility and liabilities of the export contract with the foreign buyer and that the assessee can be deemed only as the seller of M/s. Rallis India Limited, and agent of the Rallis India Limited for the purpose of undertaking the job of export of the goods by steamer.
24. In this treatment of the transaction we are in entire agreement with the view taken by the lower authorities in rejecting the assessee's claim of exemption in the percentage of sales tax towards export sales, as the sale by the assessee shall be deemed to be the sale to M/s. Rallis India Limited, Madras, and not the sale be in export to the foreign buyer.
25. Reliance was placed on the decision reported in State of Tamil Nadu v. Rafeeq Ahmed & Co.  52 STC 281 wherein it was held that, where an assessee enters into an export sale through the medium of an agent and that mode of transaction is evidenced by the record, the fact that the foreign buyers are unaware of that circumstance would not detract from the fact that the sales are really those of the assessee and that it is a question for examination of the fact of each case, whether the person who figures in the assessee's accounts as the exporting agent is really an agent acting as such for the assessee's transactions with the foreign buyers. In the above case one Abdul Shukoor and Company was acting directly with the foreign buyers only as an agent and they did not disclose the principal's name. There it was held that even though the principal's name was not disclosed, Abdul Shukoor and Company was only an agent in the sale effected to the foreign buyer. But as observed in the above decision, in the present case, the assessee did not export the steel materials as seller to the foreign buyer and the assessee acted only as an agent on behalf of the real exporter, viz., Rallis India Limited, for the purpose of shipping the materials to fulfil the export contract undertaken by M/s. Rallis India Limited.
26. Yet another decision relied on by the assessee is the case reported in Akhtar & Co. v. State of Tamil Nadu  47 STC 62, wherein it was held that so long as there is proof of agency and so long as the agent has sent the goods, not as his own, but as an agent of another as principal, there is privity of contract between the principal and the foreign buyer, even in cases when the agent has not disclosed the name of the principal. This is a converse case to that of the case reported in State of Tamil Nadu v. Rafeeq Ahmed & Co.  52 STC 281. In this case the agent had exported the materials not as his own, but as agent of another as principal and a privity of contract was presumed between the principal and the foreign buyer, even when the agent had not disclosed the name of the principal. But this ruling is not applicable to the present case, since the assessee has acted only as an agent for the job of export sale and since there was a separate contract between the assessee and M/s. Rallis India Limited regarding the price of the material, which was sought to be exported by M/s. Rallis India Limited to the foreign buyer. There is absolutely no document to suggest that M/s. Rallis India Limited acted as the express or implied agent of the assessee. There was absolutely no transaction between the assessee and the foreign buyer. It is conceded that the assessee never acted as agent of M/s. Rallis India Limited for any other export sale. So this is a single export sale wherein the assessee has acted as agent of M/s. Rallis India Limited. Thus, the contention advanced on behalf of the petitioners that they have sold 6000 tons of torsteel in export to the foreign buyer through M/s. Rallis India Limited is proned to be absolutely baseless. Consequently, the petitioners are not entitled to the exemption claimed towards the export sale.
27. In the result, the orders of the appellate authorities are confirmed and the revision is dismissed with costs. Counsel's fee Rs. 250.