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CASE NO.: Appeal (civil)  3674-3710 of 2002

PETITIONER: M/s Monga Rice Mill Etc.

RESPONDENT: State of Haryana & Anr.  

DATE OF JUDGMENT: 13/04/2004

BENCH: RUMA PAL & KAPADIA.

JUDGMENT: J U D G M E N T

WITH

CIVIL APPEAL Nos.                                                 of 2004 arising out of SLP (C) Nos.12835-12893, 14836,  17419, 21900, 22013, 22235-22273 OF 2002, CIVIL  APPEAL Nos. 2455-2465 of 2004 arising out of SLP  (C) Nos.10276-10286 OF 2003, CIVIL APPEAL  Nos.6163-6180 OF 2002, 1117-1121, 1131-1139 & 4333- 4337 OF 2003 AND WP(C) Nos.254, 262 & 288 of 2003 &  WP (C) No.15 OF 2004.  ========

KAPADIA, J.

       Leave granted.

       These civil appeals by special leave involve common  question of law as to whether the State has power and  competency to levy tax on paddy, purchased by the miller for  sale of rice to the exporter, in view of section 5(3) read with  section 15(ca) of Central Sales Tax Act, 1956 (hereinafter  referred to as "the 1956 Act").  

       For the sake of convenience, we may refer to the facts of  Civil Appeal Nos.3674-3710 of 2002.  Appellant is the miller.   It produces paddy, processes it and sells rice to the exporter  who exports it out of India.  In the assessment proceedings, the  appellant claimed that in view of Article 286 of the Constitution  and section 5(3) and 15(ca) of the 1956 Act, the State was not  competent to levy purchase tax on the paddy purchased by it for  sale of rice to the exporter.  The appellant filed sales tax returns  for four assessment years 1996-1997 to 1999-2000 in  accordance with section 25 of the Haryana General Sales Tax  Act, 1973 (hereinafter referred to as "the 1973 Act").  On  August 16, 1999, the sales tax tribunal accepted a similar claim  of dealer M/s Veerumal Monga & Sons vide sales tax appeal  No.698 of 1998-99.  Later in review by the State, the tribunal  held that the assessee was not entitled to exemption from  payment of purchase tax on paddy.  In pursuance of the order  passed by the tribunal, the assessing authority issued notice to  the appellant herein to show cause why purchase tax be not  levied.  The appellant appeared before the assessing authority  and produced the necessary forms to show that the rice had  been actually exported out of India by the exporter who had a  prior order from the foreign buyer.  The appellant claimed that  no tax was, therefore, leviable.  While the matter was pending

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before the assessing authority, the appellant approached the  High Court through writ petition no.8532 of 2000.  In the writ  petition, the appellant challenged the order of assessment.  The  department filed its reply.  It was averred that the purchase of  paddy by the miller-cum-exporter, by virtue of legal fiction in  section 15(a), became purchase in the course of export under  section 5(3) of 1956 Act, but the legal fiction does not extend to  the case of the appellant who purchased the paddy from the  market for sale of rice to the exporter.  By the impugned  judgment and order dated 28.8.2001, the High Court held that  the purchase of paddy by the appellant for sale of rice to the  exporter is exigible to the levy of purchase tax under the 1973  Act.  Hence, these civil appeals.

       Before dealing with the arguments advanced by the  learned counsel for the parties, four concepts arising from  sections 5 and 15 of 1956 Act are required to be understood.   These are \026 local sale, sale in the course of exports, export sale  and single point levy of tax for declared goods.  These are  inbuilt in sections 6 and 17 read with schedule-D to the 1973  Act.  For sake of convenience, we quote hereinbelow sections 5  and 15 of the 1956 Act along with sections 6 and 17 read with  schedule ’D’ of 1973 Act:\027 Sections 5 and 15 of the 1956 Act: Section 5.      When is a sale or purchase of goods  said to take place in the course of import or  export.\027(1) A sale or purchase of goods shall be  deemed to take place in the course of the export of  the goods out of the territory of India only if the  sale or purchase either occasions such export or is  effected by a transfer of documents of title to the  goods after the goods have crossed the customs  frontiers of India.  

(2)     A sale or purchase of goods shall be deemed  to take place in the course of the import of the  goods into the territory of India only if the sale or  purchase either occasions such import or is  effected by a transfer of documents of title to the  goods before the goods have crossed the customs  frontiers of India.  

(3)     Notwithstanding anything contained in sub- section (1), the last sale or purchase of any goods  preceding the sale or purchase occasioning the  export of those goods out of the territory of India  shall also be deemed to be in the course of such  export, if such last sale or purchase took place  after, and was for the purpose of complying with,  the agreement or order for or in relation to such  export.

Section 15.     Restrictions and conditions in  regard to tax on sale or purchase of declared  goods within a State.\027Every sales tax law of a  State shall, insofar as it imposes or authorizes the  imposition of a tax on the sale or purchase of  declared goods, be subject to the following  restrictions and conditions, namely:\027

(a)     the tax payable under that law in respect of  any sale or purchase of such goods inside  the State shall not exceed four per cent of

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the sale or purchase price thereof;

(b)     where a tax has been levied under that law  in respect of the sale or purchase inside the  State of any declared goods and such goods  are sold in the course of inter-State trade or  commerce, and tax has been paid under this  Act in  respect of the sale of such goods in  the course of inter-State trade or commerce,  the tax levied under such law shall be  reimbursed to the person making such sale  in the course of inter-State trade or  commerce in such manner and subject to  such conditions as may be provided in any  law in force in that State;

(c)     where a tax has been levied under that law  in respect of the sale or purchase inside the  State of any paddy referred to in sub-clause  (i) of clause (i) of section 14, the tax leviable  on rice procured out of such paddy shall be  reduced by the amount of tax levied on such  paddy;

(ca)    where a tax on sale or purchase of paddy  referred to in sub-clause (i) of clause (i) of  section 14 is leviable under the law and the  rice procured out of such paddy is exported  out of India, then, for the purposes of sub- section (3) of section 5, the paddy and rice  shall be treated as a single commodity;

(d)     each of the pulses referred to in clause (via)  of section 14, whether whole or separated,  and whether with or without husk, shall be  treated as a single commodity for the  purposes of levy of tax under that law.

Sections 6 and 17 of the 1973 Act: Section 6.      Incidence of Taxation.\027(1) Subject  to other provisions of this Act, every dealer whose  gross turnover during the year immediately  preceding the 27th day of May 1971 and every  other dealer shall, on the expiry of thirty days after  the date on which his gross turnover first exceeds  the taxable quantum, be liable to pay tax under this  Act on the sale or purchase of goods by him in the  State at the stage hereinafter provided:\027

(a)     on declared goods at the stage specified  under section 17;

(b)     on goods notified under section 18 at the  stage of first sale as specified under that  section;

(c)     on all other goods at the stage of \026

(i)     last sale when the goods are sold to  any person other than a registered  dealer who furnishes declaration as  specified under section 27 or as  notified under section 13 or as

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prescribed under section 13B of this  Act;

(ii)    last purchase in all other cases except  when the purchase is made on  payment of tax;

Provided that this sub-section shall not apply  to a dealer who deals exclusively in goods  specified in Schedule B or who executes a sub- contract with a contractor who is liable to pay tax  in respect of the works contract of which the sub- contract is a part.

       Provided further that in the case of a  dealer\027

(a)     Who imports any goods for sale or for use in  manufacturing or processing any goods for  sale, the liability to pay tax shall commence  from the date on which he imports such  goods.

(b)     Who manufactures or processes any goods  for sale, the liability to pay tax shall  commence, from the date on which his gross  turnover, during any year, first exceeds the  taxable quantum.

(c)     Who exports any goods purchased within  the State, the liability to pay tax shall  commence from the date on which he  purchases such goods.

(d)     Who deals in declared goods, the liability to  pay tax shall commence from the date on  which his gross turnover of such goods  exceeds the taxable quantum;

(e)     who deals in foreign liquor (Indian made  foreign liquor and foreign liquor), the  liability to pay tax shall commence from the  date on which he deals in such goods.

(f)     Who deals in textiles exclusively, the  liability to pay tax shall commence from the  date on which the sales of goods other than  those specified in  Schedule B exceeds  rupees one lac in a year.

(g)     who is a contractor doing the work of  construction, fitting, improvement or repair  of any building, road, wall, bridge,  embankment, dam or other immovable  property and has not charged tax or has not  made use of the authority of his registration  certificate under this Act or the Central  Sales Tax Act, 1956 during the period from  Ist day of April, 1987 to 31st day of March,  1989, shall not be liable to pay tax under this  Act during aforesaid period on the goods  involved in the execution of works contract.

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(h)     who transfers the right to use tents, kanats,  chholdari, crockery, utensils, furniture and  all other goods for decoration and lighting  purposes, and has not charged tax or has not  made use of the authority of his registration  certificate under this Act or the Central  Sales Tax Act, 1956, during the period from  Ist day of April, 1987 to 31st day of March,  1989 and opts for the payment of lump sum  as may be prescribed, in lieu of sales tax;  shall not be liable to pay tax under this Act  during the aforesaid period and his liability  to pay tax under this Act on the transfer of  right to use any goods for cash, deferred  payment or other valuable consideration  shall commence from Ist day of April, 1989  and shall remain in force upto 31st March,  1995.

(3)    Every dealer who has become liable to pay  tax under this Act shall continue to be so liable  until the expiry of three consecutive years during  each of which his gross turnover has failed to  exceed the taxable quantum and such further  period after the date of such expiry, as may be  prescribed, and on the expiry of this latter period  his liability to pay tax shall cease.

(4)     Every dealer, whose liability to pay tax has  ceased under the provisions of sub-section (3) shall  again be liable to pay tax under this Act in  accordance with the provisions of sub-section (1).

(5)     Notwithstanding anything to the contrary  contained in this Act or any other law or judgment  or order of any court or authority in respect of  cases relating to assessments for the period from  the 7th September, 1955 up to the commencement  of this Act, every dealer who was assessed under  the Punjab General Sales Tax Act, 1948 shall be  deemed to have been assessed under this Act as if  this Act was in force during the said period.

Section 17.     Tax on declared goods.\027Tax on  declared goods shall be leviable and payable at the  stage of sale or purchase, as the case may be and  under the circumstances specified against such  goods in Schedule D;

       Provided that where the goods have not been  subjected to tax at any of the stages of sale or  purchase specified in Schedule D, the tax shall be  levied on and paid by a dealer liable to pay tax  under this Act at the stage of last purchase of such  goods by him;

       Provided further that the tax under this  section shall be levied, charged and paid after  providing deductions admissible under section 27  of this Act.

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SCHEDULE ’D’:

Sl.  No. Name of declared  goods Circumstances  under which tax  is to be levied Stage of levy 1. Cotton, paddy and oil  seeds other than cotton  seeds, as are defined in  section 14 of the  Central Sales Tax Act,  1956.

(i) When  imported.

(ii) When  purchased  within the State. First sale  within the State  by a dealer  liable to pay  tax under this  Act.

Last purchase  within the State  by a dealer  liable to pay  tax under this  Act.

In these civil appeals, we are not concerned with imports  and, therefore, in the course of our judgment we have only  emphasized the concept of sale or purchase in the course of  export.  Section 5 of the 1956 Act lays down principles for  determining as to when a sale or purchase takes place in the  course of export.  It defines constitutional inhibition of Article  286(1)(b), namely, that no law of a State shall impose tax on  sale or purchase which takes place in the course of import of  goods into or export of goods out of India.  Section 5(1) covers  direct export sale, whereas section 5(3) applies to penultimate  sale or purchase, which is deemed to be sale or purchase in the  course of export and consequently falls under section 5(1) of  the 1956 Act.  Therefore, in cases where a sale is not directly  connected with exports and where between the seller and the  ultimate buyer, intermediaries are involved, such a sale, if not  covered under section 5(3), cannot occasion any export and,  therefore, such transaction would not fall under section 5(1).   There is a difference between sale for export and sale which  occasions export.  When the assessee buys paddy and converts  it into rice which is sold to the exporter, although purchase of  paddy is a transaction for export, such transaction does not  occasion export and consequently it does not fall within section

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5(3).  Under section 5(3), a penultimate local sale is deemed to  be an export sale under section 5(1) only if such local sale  occasions export.   

Now coming to the question of single point tax, it is  important to bear in mind that in law every transaction has two  ends \026 sale end and purchase end.  Section 14 of the 1956 Act  enumerates declared goods including paddy and rice.  It does  not impose any liability.  Section 15(a) of the 1956 Act, as it  stood at the relevant time, makes it mandatory for the State to  tax either the sale point or the purchase point.  Accordingly,  under sections 6 and 17 read with schedule-D of the 1973 Act, a  single point tax is levied on rice and paddy separately provided  there is sale and purchase of identical goods. Section 15(c) of  the 1956 Act inter alia provides for adjustment/set-off of tax  paid on paddy against tax paid on rice procured therefrom.  To  the same effect are the provisions in sections 15 proviso (iii),  15A and 27 of the 1973 Act.  Hence, the legislature had all  along treated rice and paddy as two separate taxable items for  all purposes till 28.9.1996 when clause (ca) was introduced to  get over the effect of the judgment of the High Court in the case  of United Riceland Ltd. & Anr. v. State of Haryana & Ors.  reported in [(1997) 104 STC 362].  In that case, it was held that  paddy and rice, both being declared goods under section 14 of  the 1956 Act, are different taxable commodities subject to tax  under sections 6 and 17 read with schedule-D of the 1973 Act  and consequently, the exporter who buys paddy, converts it to  rice and exports it, is liable to pay tax on purchase of paddy  under the said 1973 Act.    This resulted in cost plus effect on  exports, which made the exports very costly as the exporter had  to pay the purchase tax.  In order to make exports more  competitive, globally, clause (ca) was inserted in section 15 of  the 1956 Act, under which rice and paddy are equated by a  deeming fiction for the purposes of section 5(3) of the said  1956 Act.  The effect of clause (ca) was two fold.  Firstly, both  the commodities were equated so that the State cannot tax them  at multiple stages.  Secondly, in view of the said equation by a  deeming fiction, the last purchase of paddy for sale of rice to be  exported could not be taxed in view of section 5(3) of the said  1956 Act.  But for clause (ca) of section 15, the exporter was  liable to pay purchase tax on the last purchase.  Hence, clause  (ca) has nullified the effect of the judgment in United  Riceland’s case (supra).

       Mr. Dushyant Dave, learned senior counsel appearing on  behalf of the appellant contended that export sales involve a  series of integrated activities commencing from agreement of  sale with the foreign buyer and ending with delivery of goods to  a common carrier for transport out of India.  Such a sale cannot  be disassociated from the export.  Therefore, sale of rice by the  appellant to the exporter, procured from paddy was a part of  export sales and consequently exempt from tax.  It was urged  that section 5(1) of the 1956 Act applies to export sales.  They  are sales which occasion export.  On the other hand, section  5(3) of that Act refers to penultimate sale preceding export sale,  which is deemed to be "sale in the course of exports" and not  exigible to tax.  It was urged that prior to 28.9.1996, paddy and  rice were taxed separately as two different commodities under  the 1973 Act and consequently the full bench of the High Court  in the case of United Riceland Ltd. (supra) took the view that  purchase of paddy by miller-cum-exporter was exigible to  purchase tax under sections 6 and 17 read with schedule-D of  the 1973 Act.  The result was that although the penultimate sale  was not liable to tax in terms of section 5(3) of the 1956, the  exporter had to pay purchase tax on purchase of paddy under

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the 1973 Act.  Consequently, rice exported from India lost its  competitive edge as its export became costlier in the  international market as compared to rice exports from  neighbouring countries.  In the circumstances, clause (ca) was  inserted in section 15 on 28.9.1996 under which paddy and rice  were made taxable at one stage so that purchase of paddy could  be exempted from tax under the local law thereby enabling the  exporter to reduce the cost of export.  It was contended that  today we live in the age of globalization where revenue from  exports help the national economy and, therefore, this Court  should read the above provisions in the widest possible terms  keeping in mind the global competition in the world market.  It  was submitted that purchases and sales are two sides of the  same coin and where such purchases and sales have been made  prior to and not subsequent to placement of export orders by the  foreign buyer, such transactions should get benefit of  exemption under section 5(3) read with section 15(ca) of the  1956 Act.  It was submitted that the High Court had erred in  restricting the deeming fiction under clause (ca) only to the  miller-cum-exporter; that it had failed to appreciate the scope  and content of clause (ca) under which paddy and rice have  been equated for the purposes of section 5(3) so that purchase  of paddy by the appellant for sale of rice to the exporter would  also be exempt from payment of purchase tax under the 1973  Act.  

       Mr. S. Ganesh, learned senior counsel appearing on  behalf of the appellant in civil appeal Nos.1117-1121 of 2003,  in addition to the above arguments, submitted that in view of  clause (ca) of section 15, the term "paddy" and the term "rice"  are interchangeable.  He submitted that in the present case, we  are concerned with two sales namely, sale from appellant to the  exporter and sale by the exporter to the foreign buyer.  It was  urged that under the impugned judgment, the High Court has  restricted the benefit of tax exemption only to sale by the  exporter and not to the sale by the appellant to the exporter.   According to the learned counsel since the terms "paddy" and  "rice" were interchangeable under clause (ca), it must follow  that what the appellant sold to the exporter is paddy and  therefore the last purchaser of such paddy was the exporter and  not the appellant and consequently the appellant was not liable  for payment of purchase tax on purchase of paddy and sold as  rice to the exporter.           Lastly, it was urged that tax levied on purchase value of  paddy was adjustable against tax liability on the sale of rice  under sections 12, 15 and 27 of the 1973 Act and since there  was no tax on export of rice, the liability of tax on the appellant  was nil.

       At the outset, we state that none of the judgments cited  by the learned counsel for the parties deal with the points which  arises for determination in these civil appeals.  As stated above,  there are two ends in every transaction, namely, the sale end  and the purchase end.  Section 5 of the 1956 Act lays down  principles for determining when a sale or purchase occasions  export.  It inter alia defines the constitutional inhibition of  Article 286(1)(b), namely, that no law of a State shall impose  tax on sale or purchase which occasions export.  To constitute a  purchase, exempt from State purchase tax, the purchase must  occasion export.  The question which we have to decide in these  civil appeals is : whether purchase of paddy by the appellant  (miller), who procures rice from it and sells the rice to the  exporter is a purchase which occasions export or is it a purchase  for export?  Section 5(1) of 1956 Act exempts export sales.  

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There are three categories of sales, namely, local sale, inter- State sale and export sale.  Section 5(1), therefore, covers direct  export whereas section 5(3) covers last sale or purchase  preceding direct export which is deemed to be in the course of  export.  The last sale or purchase preceding the direct export is  deemed to be in the course of export as the two are so closely  connected that breach of one may result in breach of the  composite contract.  It is for this reason that section 5(3) inter  alia requires such sale or purchase transaction being entered  into after and in compliance with the export order being placed  by the foreign buyer.  The underlying rationale of section 5(3)  is that such penultimate sale or purchase must occasion export  in order to constitute sale or purchase in the course of export.   Section 5(3) does not cover the penultimate transaction which  occasions sale in the local market, nor does it cover sale for  export.  In the present case, appellant is a miller within the  State; it buys paddy and procures rice therefrom within the  State and sells it to the exporter within the State and as such it  is a local sale which does not fall under section 5(3).  It is a sale  for export and not a sale which occasions export.  There is one  more way of looking at the question in hand.  Under section  15(a) of 1956 Act, as it stood at the material time, the State  could levy tax either at the sale end or purchase end of the  transaction in case of declared goods.  Consequently, under  sections 6 and 17 read with schedule-D of 1973 Act, we have  single point levy of tax and not tax at multiple points.  It is the  last purchase of paddy which is made taxable under 1973 Act.   The single point levy envisages tax at either ends of the same  transaction provided that the identity of the goods remains  unchanged.  It is a tax on one single commodity.  Section 15(a)  inter alia states that the tax payable under the State law shall  not be levied at more than one stage.  The word "stage" in  section 15(a) refers to stages of successive sales and purchases  and not to stages, which raw material undergoes, resulting in  the manufacture of a different commercial commodity.  The  reason is not far to see.  Under the 1973 Act, rice and paddy are  two different commodities.  They are taxable at different rates.   Under section 15(c) of 1956 Act as also under sections 15  [proviso (iii)], 15A and 27 of 1973 Act, the tax paid on the rice  stands reduced to the extent of tax paid on paddy.  It is for this  reason that clause (ca) in section 15 of 1956 Act equates paddy  and rice for the purposes of section 5(3), otherwise it would not  be possible to harmonize the set-off provisions, stated above,  with clause (ca) of section 15 of 1956 Act.  Moreover, clause  (ca) applies only in cases of export of rice procured from paddy.   In all other situations, paddy and rice remain two different  taxable items.  If clause (ca) is read in the manner suggested by  the appellant, sections 15(a) and 15(c) would be rendered  nugatory.  Similarly, proviso (iii) to section 15, section 15A and  section 27 of 1973 Act, which provides for set-off/adjustment  of tax paid on paddy against tax paid on rice, would be rendered  otiose.  The High Court was, therefore, right in holding that  clause (ca) of section 15 of 1956 Act provides for a limited  deeming fiction attached to purchased commodity, namely,  paddy purchased by the miller-cum-exporter.  In the present  matter, we are concerned with levy of purchase tax under  section 17 read with schedule-D of 1973 Act.  Schedule-D was  introduced by notification dated 1.8.1988 in line with the  provisions of section 5(3) of 1956 Act, which as stated above,  defines last sale or purchase preceding export sale, as sale or  purchase in the course of export.  Schedule-D refers to levy of  tax on "last purchase", an expression which is borrowed from  section 5(3) of 1956 Act.  Schedule-D of 1973 Act is, therefore,  in-conformity with the provisions of section 5 of 1956 Act.  So  read, it is clear that the words "last purchase" in schedule-D

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connotes purchase which occasions export and not purchase of  paddy for export.  In the case of Hotel Balaji & Ors. v. State of  A.P. & Ors. reported in [1993 Supp. (4) SCC 536] this Court  has observed that it is difficult to define the words "last  purchase" except with reference to the mode of the use of the  purchased goods subsequent to that purchase and in that sense  levy can be crystallized only at the point of time when the  goods have been utilized in a particular way.  Applying the test  propounded by this Court in Hotel Balaji’s case, we hold that  clause (ca) of section 15 contains a limited deeming fiction by  which tax exemption is given only to the sale of rice by the  exporter and not to the sale by the appellant \026 miller to the  exporter.

       At one stage, it was sought to be contended on behalf of  the appellant in civil appeal Nos.1117-1121 of 2003 that terms  "rice" and "paddy" were interchangeable under clause (ca) from  which it follows that what the appellant sold to the exporter was  paddy and, therefore, the last purchaser of such paddy was the  exporter and not the appellant and consequently the appellant  was not liable for payment of purchase tax.  We do not find  merit in this argument.  Clause (ca) of section 15 inter alia  states that where a tax on purchase of paddy is leviable under  the State law and the rice procured out of such paddy is  exported, then for the purposes of section 5(3), paddy and rice  shall be treated as a single commodity.  As stated above, clause  (ca) contains a limited deeming fiction, which only applies to  sale of rice by the exporter.  This fiction is attached to the  purchased commodity which is paddy from which rice is  procured and not the exported commodity.  Clause (ca) equates  the two commodities only in cases where rice procured from  paddy is exported and not to any other case.     Accordingly, we  hold that the purchase of paddy by the appellants in these cases  is not exempt from the levy of a tax.  Such purchases do not fall  within section 5 of 1956 Act.  The sale by the exporter is,  however, exempt under section 5(1) and the purchase of paddy  by the miller-cum-exporter is covered under section 5(3) of  1956 Act.

       Before concluding, we notice the concluding argument  advanced on behalf of the appellants in civil appeal nos.1117- 1121 of 2003.  It was urged that tax levied on the purchase  value of paddy was adjustable against tax liability on sale of  rice under sections 12, 15 [proviso (iii)], 15A and 27 of 1973  Act and since there was no tax on export of rice, the liability of  tax on the appellant was nil.  In this matter, as can be seen from  the impugned judgment, the High Court has granted liberty to  the appellant to file appeal against the assessment order(s).   Since the above contention needs adjudication on facts, we do  not wish to deal with this contention, at this stage, leaving it  open to the appellant to raise all such contentions before the  Assessing/Appellate Authority.

       Subject to above, civil appeals and writ petitions herein  fail and are accordingly dismissed with no order as to costs.