{"id":146660,"date":"2005-01-03T00:00:00","date_gmt":"2005-01-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-andhra-pradesh-vs-ms-a-p-paper-mills-ltd-on-3-january-2005"},"modified":"2016-02-15T11:17:50","modified_gmt":"2016-02-15T05:47:50","slug":"state-of-andhra-pradesh-vs-ms-a-p-paper-mills-ltd-on-3-january-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-andhra-pradesh-vs-ms-a-p-paper-mills-ltd-on-3-january-2005","title":{"rendered":"State Of Andhra Pradesh vs M\/S A.P. Paper Mills Ltd on 3 January, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Andhra Pradesh vs M\/S A.P. Paper Mills Ltd on 3 January, 2005<\/div>\n
Author: . A Lakshmanan<\/div>\n
Bench: S.N. Variava, Dr. Ar. Lakshmanan, S.H. Kapadia<\/div>\n
           CASE NO.:\nAppeal (civil)  3750 of 1999\n\nPETITIONER:\nState of Andhra Pradesh\n\nRESPONDENT:\nM\/s A.P. Paper Mills Ltd.\n\nDATE OF JUDGMENT: 03\/01\/2005\n\nBENCH:\nS.N. Variava, Dr. AR. Lakshmanan & S.H. Kapadia\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
Dr. AR. Lakshmanan, J.\n<\/p>\n
The short question involved in this appeal is whether the transportation charges
\nand agent’s commission paid by the respondent  M\/s A.P. Paper Mills Ltd. to the agent
\ntogether with the cost of raw materials constitute “turnover” under Section 2(s) and is
\nliable to sales tax under Section 6-A of the Andhra Pradesh Sales Tax Act, 1957
\n(6\/1957).\n<\/p>\n
The respondent is a public limited company engaged in the activity of
\nmanufacturing paper.   The  respondent is a registered dealer under the A.P. Sales Tax
\nAct, 1957 (hereinafter called as “the Act”) and is an assessee on the rolls of the
\nCommercial Tax Officer, Aryapuram, Rajahmundry.\n<\/p>\n
The respondent purchased hard wood (raw material) from unregistered dealers
\nthrough persons called agents.  The hard wood is used for the manufacture of pulp.
\nThe agents are engaged in the business of purchase of raw material from the
\nunregistered dealers and supplying the same in the factory of the respondent on
\ncontract rates which included the cost of raw materials, transportation charges and the
\nagent’s commission.  The respondent filed their returns under the provisions of the Act.
\nThe Commercial Tax Officer found out that the respondent was paying sales tax under
\nSection 6-A of the Act only on the  cost of raw materials purchased from the
\nunregistered dealers leaving out the transportation charges and the commission paid to
\nthe agents which amounted to Rs.48,50,735\/-.\n<\/p>\n
The Commercial Tax Officer made an assessment including the transportation
\ncharges and the agent’s commission paid in the taxable turnover  under Section 6-A of
\nthe Act  after issuing a show cause notice.  The amount of tax determined to be paid
\nwas Rs.2,42,537\/-.  The Commercial Tax Officer held that the respondent is liable to
\npay tax on the total amount of purchase price as per the definition of total turnover
\nunder Section 2(s) of the Act which also included the transportation charges and the
\nagent’s commission for procuring the raw materials.  The respondent filed an appeal
\nbefore the Appellate Deputy Commissioner against the order of the Commercial Tax
\nOfficer dated 22.3.1993.  The appellate Authority held that the respondent did not
\ntransport the raw materials after purchase but the agent was made responsible for
\npurchase of raw materials and transportation of the same to the respondent’s factory for
\na total consideration which included the cost of raw materials, transportation charges
\nand agent’s commission.  The appellate Authority held that the entire consideration paid
\nby the respondent as the purchase value of the raw materials  liable to tax under
\nSection 6-A of the Act.\n<\/p>\n
The respondent filed a second appeal before the Sales Tax Appellate Tribunal
\nwhich allowed the appeal directing the Commercial Tax Officer to delete the additions
\nmade towards transportation charges and agent’s commission from the gross and the
\nnet turnovers.  The Tribunal held that the purchases made by the agents from
\nunregistered dealers are the purchases made by the respondent and any expenses
\nincurred subsequent to the purchase of raw materials would not be included in sale
\nconsideration flowing from the agent to the respondent.  Aggrieved  by the order of the
\nTribunal dated 13.5.1998, the appellant filed a Tax Revision case in the High Court  of
\nAndhra Pradesh.  The High Court, without going into the merits of the case, dismissed
\nthe revision on the summary ground that the transportation charges and agent’s
\ncommissioner were incurred subsequent to the purchase of the raw materials and the
\nsaid charges, therefore, do not represent the sale consideration which had passed from
\nthe buyer to the seller is a finding of fact.\n<\/p>\n
Aggrieved by the order passed in the revision by the High Court of  Andhra
\nPradesh, the above appeal by way of special leave petition was filed by the State of
\nAndhra Pradesh.\n<\/p>\n
We have heard Mr. Debojit Borkakati, learned counsel appearing for the
\nappellant and Mr. P.N. Gupta, learned counsel appearing for the respondent.\n<\/p>\n
It was argued by the learned counsel appearing for the appellant that the High
\nCourt  is in error in not seeing that the agents appointed by the respondent are engaged
\nin the business of purchase of raw materials from the unregistered dealers and
\nsupplying the same in the factory on contract rates which included the cost of raw
\nmaterials, transport charges and the agent’s commission.  It was further submitted that
\nthe High Court is not correct in holding that the transportation charges and the agent’s
\ncommission are incurred by the respondent subsequent to the purchase of raw
\nmaterials and such charges do not represent the sale consideration.  Learned  counsel
\nappearing for the appellant invited our attention to Section  2(s) and Section  6A of the
\nAct and also relied on the judgment  of this Court in the case of  E.I.D. Parry (I) Ltd. vs.
\nAsstt. Commnr. of Commercial Taxes & Anr.<\/a> , (2000) 2 SCC 321 &  in the case of D.C.
\nJohar & Sons (P) Ltd. vs. Sales Tax Officer, Ernakulam & Anr. , 1971(Vol.27) STC 120.
\nLearned counsel appearing for the respondent reiterated the contentions urged before
\nthe lower authorities and submitted that transportation charges and commission paid to
\nthe agent would not form part of the turnover under Section 6A of the Act.  He further
\nsubmitted that the finding of fact has been  recorded by the Tribunal on the basis of the
\nrelated material on records and that the Tribunal  being final forum on question of
\nfinding of fact, the High Court has rightly not interfered with the said finding of fact and
\nthis Court will not interfere with such finding.\n<\/p>\n
We have gone through the orders passed by the authorities and also of the High
\nCourt.\n<\/p>\n
The definition of the term  “turnover” as contained in Section 2(s) is as under:-
\n“2(s) “turnover” means <\/p>\n
(i)\tthe total amount set out in the bill of sale excluding the
\namount collected towards the tax or the tax due under
\nthe Act whichever is less;”\n<\/p>\n
The definition of “total turnover” under Section 2(r) reads thus:\n<\/p>\n
“2(r)  “total turnover” means the aggregate turnover in
\nall goods of a dealer at all places of business in the
\nState, whether or not the whole or any portion of such
\nturnover is liable to tax; including the turnover of
\npurchases or sales in the course of inter-State trade or
\ncommerce or in the course of export of the goods out of
\nthe territory of India or in the course of import of the
\ngoods into the territory of India;”\n<\/p>\n
  Section 6A which deals with levy of tax on turnover relating to purchase of
\ncertain goods reads as follows:\n<\/p>\n
“6A. Levy of tax on turnover relating to purchase of certain goods
\nEvery dealer, who in the course of business-\n<\/p>\n
(i)\tpurchases any goods (the sale or purchase of which is liable to
\ntax under this Act) from a registered dealer in circumstances in
\nwhich no tax is payable under section 5 or under section 6, as
\nthe case may be, or <\/p>\n
(ii)\tpurchases any goods (the sale or purchase of which is liable to
\ntax under this Act) from a person other than a registered dealer,
\nand\n<\/p>\n
(a)\tconsumes such goods in the manufacture of other goods for
\nsale or consumes them otherwise, or\n<\/p>\n
(b)\tdisposes of such goods in any manner other than by way of
\nsale in the State, or\n<\/p>\n
(c)\tdespatches them to a place outside the State except as a
\ndirect result of sale or purchase in the course of inter-State
\ntrade or commerce,<\/p>\n
shall pay tax on the turnover relating to purchase aforesaid at the same
\nrate at which but for the existence of the aforementioned circumstances,
\nthe tax would have been leviable on such goods under section 5 or
\nsection 6; ”\n<\/p>\n
It is an admitted fact that the respondent purchased the hard wood  from
\nunregistered dealers through agents and that the respondent  appointed certain agents
\nwho have opened depots for buying hard wood and transporting the same to the factory
\npremises of the respondent and that the agents were paid a total amount which
\nincluded the cost of raw material, transportation charges and commission.  The
\nassessing Authority is right in levying the tax on the total amount paid to the agents for
\npurchasing hard wood from unregistered dealers.  It was contended by the learned
\ncounsel for the respondent that the respondents are entitled to claim exemption on
\ntransportation charges and commission on the ground that they would not form part of
\nthe turnover under Section 6A of the Act.    This contention was rejected by the
\nassessing authority,  rightly so, in our opinion, on the ground that the  respondents were
\nliable to pay tax on the total amount of purchase price of hard wood.  We have already
\nextracted the definition of “turnover” under Section 2(s) of the Act.  The expenses for
\nprocuring hard wood, in our opinion, would become part of the total turnover.  The
\nassessing authority dismissed the appeal on the ground that the respondent did not
\ntransport hard wood after purchase that the agent was made responsible for
\ntransportation etc. and that, therefore, total consideration paid for the purchase of the
\ngoods would form the turnover.  The said submission, in our opinion, has no force.\n<\/p>\n
The Tribunal, in its order, has relied on the statement of the agent extracted at
\npage 2 of the assessment order.  It is useful to reproduce the said statement which
\nreads as under:\n<\/p>\n
“I am willing to supply casuraina oil ets from local cultivators
\nand transport the same to your depots as per your approved rate and
\nconditions.  Further in the application the rate of raw material supply
\nwas split up into three components namely:- (1) cost of raw material
\n(2) Transport charges (3) Commission.”\n<\/p>\n
The finding of the Tribunal and the High Court that the transport and commission
\nwere charges incurred subsequent to the purchase of the hard wood and such charges
\ndo not represent the sale consideration is against the admitted fact on the side of the
\nrespondent who have clearly made the statement that the agents were paid a total
\namount which included the cost of raw material, transportation charges and
\ncommission.    When the facts are not in dispute, the Tribunal and the High Court have
\nerred in rendering  a finding against the revenue.\n<\/p>\n
In the case of E.I.D. Parry (I) Ltd. vs. Asstt. Commnr. of Commercial
\nTaxes & Anr.<\/a> (supra), the question before this Court was as to whether the planting
\nsubsidy paid by the appellants  E.I.D. Parry (I) Ltd. to the sugar-cane growers can be
\nsaid to be a part of the price of sugarcane purchased by it from them and can
\nlegitimately be included in the turnover of the appellants.  Whether the transport
\nsubsidy\/charges in excess of 30 Km. paid by the appellant to third party, lorry owners,
\nfor transporting sugarcane pursuant to the State Government’s direction can be
\naggregated with the price of sugarcane and included in the turnover of the appellants.
\nIt was contended before this Court by the counsel for the appellant that the planting
\nsubsidy given by the appellants to the cane-growers was by way of an incentive to the
\ncane-growers for planting a particular variety in the stipulated months preceding the
\nplanting season and that the planting subsidy being unrelated to the sale of sugarcane
\ncould not have been treated as a part of the price for which the goods were bought and,
\ntherefore, could not have been rightly included in the turnover of the appellants for
\ndetermining their purchase tax liability.    On the other hand, the contention raised on
\nbehalf of the sales tax authorities was that the act of giving planting subsidy for growing
\nsugarcane followed by an agreement for sale of the sugarcane by the grower
\nconstituted one single transaction and the planting subsidy being an amount paid in
\nrelation to the goods purchased had been rightly regarded as a part of the price of
\nsugarcane and included in the turnover of the appellants.  As regards the transport
\nsubsidy, the contention of the appellants was that the transport charges were in fact
\npaid by the appellants to third party lorry owners for transporting sugarcane beyond the
\ndistance of 30 Km in view of the Government’s directions and that the transport charges
\nbeing not the amounts charged by the growers nor being the amounts paid to them
\nwere really in the nature of the post-sale expenses and, therefore, could not have been
\nlawfully treated as part of the price and included in the turnover of the appellants.  The
\ncontention of the sales tax authority, on the other hand, was that under the agreement
\nof sale the cane-growers had to deliver the sugarcane at factory premises and the
\narrangements made by the appellants for transporting sugarcane by engaging private
\nlorries were for the purpose of enabling the cane-growers to deliver sugarcane speedily
\nand at specified times.  It was further submitted that as transportation charges were
\npaid by the appellants with a view to help or assist the sugarcane-growers they were
\nreally a part of the price for which sugarcane was bought by the appellants and, were,
\ntherefore, rightly included in the taxable turnover of the appellants.  After a detailed
\ndiscussion, this Court came to the conclusion that the total amount of consideration for
\nthe purchase of goods would include the price strictly so called and also other amounts
\nwhich are payable by the purchaser or which represent the expenses required for
\ncompleting   the sale as the seller would ordinarily include  all of them  in the price at
\nwhich he would sell his goods.  This Court further held that the transport subsidy was a
\npart of the consideration for which sugarcane was sold by the sugarcane growers to the
\nappellants.  It is useful to reproduce paragraph 21 of the above judgment which reads
\nas under:\n<\/p>\n
“For the same reasons we hold that the transport subsidy was a part of
\nthe consideration for which sugarcane was sold by the sugarcane-
\ngrowers to the appellants.   Though the agreements between the
\nparties provided for delivery by the sugarcane-growers at the factory
\ngate and though the transport charges paid by the appellants were not
\nto the sugarcane-growers but to third-party lorry-owners, they were
\nmade for securing regular supply of sugarcane as per the
\nrequirements.   Though payments were made at the instance of the
\nGovernment of Tamil Nadu they also became a part of the implied
\nagreement between the appellants and the sugarcane-growers.   They
\nwere not post-sale expenses.   Those amounts were paid to ensure
\nscheduled delivery of sugarcane.   The sale of sugarcane became
\ncomplete only thereafter.   Those payments can be regarded either as
\npayments made on behalf of the sugarcane-growers or payments
\nmade in modification or variation of the earlier agreements entered into
\nby the sugarcane-growers for selling sugarcane.  In either case they
\ncould legitimately be regarded as the components of the sale price as
\nthe sellers would have otherwise included those amounts in the sale
\nprice.”\n<\/p>\n
In the case of  D.C. Johar & Sons (P) Ltd. vs. Sales Tax Officer, Ernakulam &
\nAnr.  1971(Vol.27) STC 120,  the  appellant-Company made a claim for exemption for
\nfreight and packing and delivery charges in respect of which separate bills were made
\nout  when selling the goods at Ernakulam.  This Court held that the tax levied is not a
\ntax on railway freight ; it is a tax on turnover, that is, on the aggregate of sale price
\nreceived by the dealer in respect of sale of goods.\n<\/p>\n
Earliest decisions on this point is in the case of  Dyer Meankin Breweries Ltd.
\nvs. State of Kerala,<\/a> 1970 (Vol.26) STC 248.  In this case, the appellant-Company
\nmanufactured liquor at various places in U.P. and Haryana, transported the goods from
\nits breweries and distilleries to its place of business in Ernakulam and sold them there.
\nWhen selling liquor to the customers, the appellant made out separate bills for ex-
\nfactory price and for “freight and handling charges”.  The appellant claimed that the
\namount charged for “freight and handling charges” incurred by it  in transporting the
\ngoods from the breweries and distilleries to the warehouse at Ernakulam had to be
\ndeducted under rule 9(f) of the Kerala General Sales Tax Rules, 1963, in determining
\nits taxable turnover.\n<\/p>\n
This Court held that all the expenditure incurred by the appellant towards freight
\nand handling charges was incurred prior to the sale and was a component of the price
\nfor which the goods were sold and the appellant was not entitled to the deduction
\nclaimed.\n<\/p>\n
Hindustan Sugar Mills Ltd. vs. State of Rajasthan & Ors.,<\/a> 1979(Vol.43) STC
\n13:   This  case relates to pre-sale charges.  The question that arose in the assessment
\nof the assessee to sales tax under the Rajasthan Sales Tax Act, 1954, and the Central
\nSales Tax Act, 1956, was whether the amount of freight deducted from the free on rail
\ndestination railway station price in the invoices made out by the assessee and paid by
\nthe purchasers formed part of the “sale price” within the meaning of the definition of that
\nterm in section 2(p) of the Rajasthan Act and section 2(h) of the Central Act.  The sales
\ntax authorities and the High Court took the view that the amount of freight formed part
\nof the “sale  price” and was, therefore, liable to be included in the turnover of the
\nassessee for the purpose of assessment of sale tax.  On appeal to this Court, this Court
\nheld as under:\n<\/p>\n
\t“That the scheme of the Control Order was that the freight was payable
\nby the producer and he recovered it from the purchaser as part of the f.o.r.
\ndestination railway station price.  The provision in the contract that the
\ndelivery to the purchaser was complete as soon as the goods were put on
\nrail and payment of the freight was the responsibility of the purchaser was
\nwholly inconsistent with the scheme of the Control Order and must be held
\nto be excluded by it.   The Control Order was paramount; it had overriding
\neffect and if it stipulated that the freight was payable by the producer, such
\nstipulation must prevail, notwithstanding any term or condition of the
\ncontract to the contrary.   Therefore, by reason of the provisions of the
\nControl Order, which governed the transactions of sale of cement entered
\ninto by the assessee with the purchasers, the amount of freight formed part
\nof the “sale price” within the meaning of the first part of the definition of that
\nterm in section 2(p) of the Rajasthan Act and section2(h) of the Central Act
\nand was includible in the turnover of the assessee.\n<\/p>\n
\tUnder the first part of the definition of “sale price” in section 2(p) of the
\nRajasthan Act, the expression meant the amount payable to a dealer as
\nconsideration for the sale of any goods and, therefore, the concept of real
\nprice or actual price retainable by the dealer is irrelevant.  The test is, what
\nis the consideration passing from the purchaser to the dealer for the sale of
\nthe goods. It is immaterial to enquire as to how the amount of consideration
\nis made up, whether it includes excise duty or sales tax or freight.   The
\nonly relevant question to be considered is as to what is the amount payable
\nby the purchaser to the dealer as consideration for sale and not as to what
\nis the net consideration retainable by the dealer.”\n<\/p>\n
  The decision of the Rajasthan High Court was  affirmed by this Court.
\nIn a recent decision in the case of Greaves Chitram Limited vs. State of Tamil
\nNadu, 2003(133) STC, the Madras High Court held that freight is includible if the
\ncontract is for delivery at buyer’s place.    In the above judgment, the Madras High
\nCourt held that :\n<\/p>\n
“Though no written contract or agreement between the parties was
\navailable, from the purchase orders and invoices, a clue could be obtained
\nto determine the nature and character of the transaction entered into
\nbetween parties.   These documents reveal that the dealer agreed to
\neffect the delivery of the goods at the place of the buyer.   What was
\nfurther agreed to by the dealer was that freight charges would be pre-paid
\nby it.  If the contract was one for delivery at the destination railway station,
\nrisk continues to be that of the seller-dealer and consequently the freight
\ncharges paid are includible in the sale price exigible to tax.   If the contract
\nis one in which delivery to the purchaser would be complete, as soon as
\nthe goods are put on rail at the place of despatch, the risk is that of the
\npurchaser and the freight charges incurred are not includible in the sale
\nprice exigible to tax.   Of course, this is not the invariable rule in all
\neventualities and circumstances, e.g. goods covered by the control orders
\nlike Cement Control Order.  The dealer agreed to effect delivery at the
\nplace of the buyer and that apart, it had also paid the transport charges
\nbesides including the same in the invoice.   Therefore the transport
\ncharges are includible in sale price.”\n<\/p>\n
In Ram Oxygen (P) Ltd. vs. Joint Commissioner (CT), 2004(Vol.134) STC 240,
\nthe Tamil Nadu Taxation Special Tribunal took the similar view and held that freight is
\nincludible in turn over.\n<\/p>\n
For the aforesaid reasons, the appeal filed by the State of Andhra Pradesh is
\nallowed.  The question of law is answered in the affirmative and in favour of the State.
\nThe order passed by the Sales Tax Appellate Tribunal as affirmed by the High Court is
\nset aside.  There shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Andhra Pradesh vs M\/S A.P. Paper Mills Ltd on 3 January, 2005 Author: . A Lakshmanan Bench: S.N. Variava, Dr. Ar. Lakshmanan, S.H. Kapadia CASE NO.: Appeal (civil) 3750 of 1999 PETITIONER: State of Andhra Pradesh RESPONDENT: M\/s A.P. Paper Mills Ltd. DATE OF JUDGMENT: 03\/01\/2005 BENCH: S.N. Variava, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-146660","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Andhra Pradesh vs M\/S A.P. 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