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Linotype and Machinery Limited Vs. the Commercial Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 217(W) of 1961
Judge
Reported in[1973]32STC246(Cal)
AppellantLinotype and Machinery Limited
RespondentThe Commercial Tax Officer and ors.
Appellant AdvocateRanadab Chaudhuri and ;S.K. Roy Choudhury, Advs.
Respondent AdvocateS.N. Dutt, Adv.
Cases ReferredTata Iron and Steel Co. Ltd. v. S.R. Sarkar
Excerpt:
- .....incorporated in england. it has its works at altringham, cheshire, england and it manufactures linotype machines at its said works. the petitioner claims that its office at calcutta is a branch office. on or about 1st march, 1956 and 30th april, 1956, the government of india, through the deputy controller, stationery, calcutta, placed two orders upon the petitioner for sale and supply to the manager, government of india press, new delhi, of certain linotype machines at the prices and on the terms and conditions mentioned in the said orders. on or about 30th november, 1955, the controller of stores, punjab, jullundur city, placed an order with the petitioner for sale and supply of linotype machines to the controller of printing and stationery, chandigarh, at the price and on the terms.....
Judgment:

Chittatosh Mookerjee, J.

1. The petitioner is a company incorporated in England. It has its works at Altringham, Cheshire, England and it manufactures linotype machines at its said works. The petitioner claims that its office at Calcutta is a branch office. On or about 1st March, 1956 and 30th April, 1956, the Government of India, through the Deputy Controller, Stationery, Calcutta, placed two orders upon the petitioner for sale and supply to the Manager, Government of India Press, New Delhi, of certain linotype machines at the prices and on the terms and conditions mentioned in the said orders. On or about 30th November, 1955, the Controller of Stores, Punjab, Jullundur City, placed an order with the petitioner for sale and supply of linotype machines to the Controller of Printing and Stationery, Chandigarh, at the price and on the terms and conditions mentioned in the said order. The petitioner has claimed that pursuant to the said three orders, the goods were packed at the works of the petitioner at Altringham, Cheshire, England and the same were shipped from England to India and thereafter supplied to the abovenamed purchasers. The petitioner is a registered dealer under the Central Sales Tax Act, 1956. It had submitted to the sales tax authorities its sales tax returns for the half year ended 31st December, 1957, for the quarter ended 31st March, 1958 and for the quarter ending 30th June, 1958. In these returns, the petitioner claimed exemption from the payment of sales tax in respect of the goods sold by the petitioner under the aforesaid three orders. On 25th September, 1958, the Commercial Tax Officer, Sealdah Charge, respondent No. 1, made assessment orders in respect of the said two periods, i.e., 1st July, 1957, to 24th July, 1957 and 25th July, 1957, to 30th June, 1958. Respondent No. 1 rejected the contention of the petitioner that the aforesaid machineries were imported to India for the specific purpose of selling them to the Government and hence they occasioned the imports and that they were exempted from the Central Sales Tax Act, 1956. The Commercial Tax Officer observed that he did not find any such provision under the Bengal Finance (Sales Tax) Act, 1941, exempting such sales from tax. Hence, he disallowed the claims. The Commercial Tax Officer assessed such sales of these linotype machines to sales tax. The Commercial Tax Officer by his assessment orders found that Rs. 11,027.84 was due from the petitioner for the period from 1st July, 1957, to 24th July, 1957. The Commercial Tax Officer found that for the period 25th July, 1957, to 30th June, 1958, a sum of Rs. 9,314.87 was still due as sales tax from the petitioner. After the aforesaid assessments were made, the petitioner-company demanded from the Government of India and the then Government of Punjab payment of the sums which had been assessed as sales tax upon the machineries sold by the petitioner to the said Governments. Both the Government of India and the then Government of Punjab declined to pay these sums towards sales tax assessed on the machineries purchased by them from the petitioner on the ground that such sales were exempted under Section 5(2) of the Central Sales Tax Act, 1956. In the meantime, certificate cases were started against the petitioner in realisation of the outstanding taxes due in respect of the period 1st July, 1957, to 24th July, 1957 and for the period 25th July, 1957, to 30th June, 1958. The petitioner obtained this rule challenging the said assessment orders and also the certificate cases.

2. Mr. Chaudhuri, the learned Advocate for the petitioner has submitted that the Commercial Tax Officer committed an error apparent on the face of the record by disregarding the provision of Section 5(2) of the Central Sales Tax Act. According to the petitioner, in view of the said provision, the Commercial Tax Officer has no jurisdiction to assess sales tax under the Central Sales Tax Act, 1956, upon the sales of the machineries made by the petitioner to the Government of India and the then Government of Punjab, as the said sales and purchases occasioned imports from England within the meaning of Section 5(2) of the Act. Reliance has been placed upon the decision of the Supreme Court in K.G. Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes, Madras Division, Madras [1966] 17 S.T.C. 473 (S.C.).

3. In K.G. Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes, Madras Division, Madras [1966] 17 S.T.C. 473 (S.C.), 'the assessee entered into a contract with the Director-General of Supplies and Disposals, New Delhi, for the supply of axle-box bodies. The goods were to be manufactured in Belgium according to the specifications and the D.G.I.S.D., London, or his representative was to inspect the goods at the works of the manufacturers and issue an inspection certificate. Another inspection was provided at Madras. The assessee was paid 90 per cent after inspection and delivery of the stores to the consignee and the balance of 10 per cent was payable on final acceptance by the consignee. In the case of deliveries on f. o. r. basis the assessee was entitled to 90 per cent payment after inspection on proof of despatch and balance of 10 per cent after receipt of stores by the consignee in good condition. The assessee was entirely responsible for the execution of the contract and for the safe arrival of the goods at the destination. The contract provided that notwithstanding any approval or acceptance given by an Inspector, the consignee was entitled to reject the goods, if it was found that the goods were not in conformity with the terms and conditions of the contract in all respects. The manufacturers consigned the goods to the assessee by ship under bills of lading and the goods were cleared at the Madras Harbour by the assessee's clearing agents and despatched for delivery to the Southern Railway in Madras and Mysore. The question was whether the sales by the assessee to the Government departments were in the course of import and exempt from taxation under Section 5(2) of the Central Sales Tax Act, 1956'.

4. The Supreme Court allowed the appeal of the assessee and reversed the decision of the Madras High Court holding that the sale and purchase of the goods must be deemed to have taken place in the course of import of the goods into the territory of India as the sale occasioned such import within the meaning of Section 5(2) of the Central Sales Tax Act. According to the Supreme Court, the expression 'occasions the movement of goods' occurring in Section 3(a) and Section 5(2) had the same meaning. The Supreme Court approved its observation in Tata Iron and Steel Co. Ltd. v. S.R. Sarkar [1960] 11 S.T.C. 655 (S.C.). The view of the Madras High Court that before the sale could be said to have occasioned the import, it was necessary that the sale should have preceded the import, was not accepted.

5. Mr. Dutt, the learned Advocate for the respondents, has not disputed the legal position that if the sales of the aforesaid machineries to the Government of India and the then Government of Punjab occasioned the imports then such sale transactions would be exempted. But Mr. Dutt has submitted that in the instant case, the sales did not occasion the imports. Mr. Dutt has further submitted that the petitioner did not produce relevant documents before the Commercial Tax Officer to establish its claims that the impugned sale took place in the course of their import into the territory of India or, in other words, they did not prove before the Commercial Tax Officer that the sales occasioned the imports.

6. Both parties before me have produced relevant documents. The petitioner has annexed to its petition documents relating to these impugned sales. On 19th July, 1955, the petitioner in reply to the letter of the Deputy Controller of Stationery, Government of India, Calcutta, submitted quotations for linotype composing machines for 6 (six), model 48 (36 ems), British-built, equipped in accordance with the requirements of the Deputy Controller of Stationery. Prices quoted were f. o. r. New Delhi. It was stipulated that the machines could be shipped from the petitioner's works in England in about 6 to 8 months from the date of receipt of the firm order. Again on 19th July, 1955, the petitioner had submitted provisional quotations for 18 model 48 British-built linotype composing machines equipped in accordance with the requirements of the Government. It was stated therein that the prices quoted were provisional and the buyer would be invoiced at the packed price prevailing at the time of shipment plus all expenses for sea freight, insurance, customs duty, clearing, railway freight and a small charge for erection. The machines were to be manufactured at the petitioner's works in England. The petitioner stated that it had no stock of the linotype machines to be delivered before 31st. October, 1955, but assured that at least 5 linotype machines could be shipped from England during the month of December at the latest, another batch of 5 would be following in 6 to 8 weeks later. For the remaining 8 linotype machines, shipping period would be intimated later on. The petitioner subsequently amended the aforesaid quotation by amending the word 'shipment' in place of 'delivery' appearing in the said quotations. Orders were placed by the Government of India and the then Government of Punjab for supply of machineries in question (vide annexures A series). The Order No. P-26/2/12/55(68) dated the 1st March, 1956, placed by the Deputy Controller of Stationery, Government of India, was in respect of 6 (six) model 48 (36 ems) linotype composing machines. The details of specification of the said machines were set out in the order. It was clearly stipulated that the machines would be British-built. The price was Rs. 57,600 f. o. r. New Delhi. One of the conditions of the order was that the shipment from the works in England shall be made in about 6 to 8 months from the date of receipt of the firm order. Similarly, the Order No. P-26/2/24/55/15 dated 30th April, 1956, placed by the Deputy Controller of Stationery was in respect of 6 (six) British-built linotype composing machines f. o. r. New Delhi. The prices were provisional. It was stipulated that the payment would be made after the machines were erected and to perfect working order. The shipment was expected to be ready in March, 1956.

7. The Controller of Stores, Punjab, Jullundur City, had asked the petitioner to submit tender for supply of linotype machines according to suggested specification. On 12th September, 1955, the petitioner submitted its quotation to the Controller of Stores, Punjab, Jullundur City. The prices quoted were f. o. r. Jullundur. Regarding delivery, it was stated that the petitioner's works will be able to ship the machines in or about 8 months from the date of receipt of the firm order. The Controller of Stores, Punjab, with reference to the said order, placed orders for one brand new model standard British-built linotype composing machine according to the specifications mentioned in the order. The petitioner has also produced in this court the copies of the invoices in respect of these machines. All these invoices stated that the goods were packed at the petitioner's works at Altringham, Cheshire, England, the cost for the carriage of the said goods to the port of shipment, sea freight and insurance were charged. The prices were quoted both in sterling and in rupee. Customs duties for clearing and forwarding charges inclusive of railway freight were added to the prices of these machines.

8. The aforesaid materials clearly substantiate the claim of the petitioner that in the instant case, the sale of the machines in favour of the Government of India and the then Government of Punjab occasioned the imports. The goods under the contract of sale were to be manufactured by the petitioner at its works in England and were to be shipped from England. The said delivery dates were fixed with reference to the expected dates of shipment from England, The machines were prepared according to the special specifications of the buyers. The prices quoted were provisional and the actual prices were to be fixed according to the prices of the goods ruling at the time of shipment of the same from England. Costs of carriage to the port of shipment and also sea freight and insurance charges were added to the prices for the machines. It has also admitted that machines were actually imported from England and supplied to the Government of India and the then Government of Punjab. In these cases, it cannot be argued that the goods were imported by the petitioner without reference to the aforesaid orders for machines and that the sales did not occasion the imports. In the instant case, the petitioner imported the machines from England as a part of the agreement of sale and in order to fulfil its obligation to sell the machines in question. Therefore, I am bound to hold that the sales of the machines in question took place in the course of import of the goods into the territory of India as the sales had occasioned the imports. Therefore, these transactions were exempt from payment of sales tax and the respondents acted without jurisdiction in imposing sales tax upon the sales.

9. There was some delay on the part of the petitioner in moving this court against the impugned assessment order. I find that after the assessment orders were made, the petitioner had called upon the Government of India and the then Government of Punjab to pay sales tax imposed upon the petitioner in respect of the sales of the aforesaid machines. There was some correspondence. Ultimately, both the Governments informed the petitioner that these sales took place in the course of import of machines into the territory of India and, therefore, exempt from payment of sales tax. In the meantime, the sales tax authorities had started certificate proceedings against the petitioner. Thereafter, the petitioner moved this court. I have found that the Commercial Tax Officer had no jurisdiction to assess sales tax and the assessed taxes may be irrecoverable. Therefore, in such a case, a writ of certiorari should issue almost as a matter of course as there was patent error of jurisdiction and the existence of an alternative remedy by way of appeal against the impugned assessment order cannot be a bar to the maintainability of this writ petition.

10. Accordingly, the impugned assessments should be quashed and the respondents should be restrained from proceeding with the certificate cases for realisation of the said purported taxes from the petitioner.

11. I, accordingly, make this rule absolute and quash the impugned assessment orders so far as the same imposed sales tax upon the three said transactions of linotype machines set out in the petition. I also quash the impugned certificate proceeding for realisation of the said taxes from the petitioner.


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