THE DEPlJTy COMMISSIONER OF AGRICULTURAL INCOME TAX & SALES TAX, ERNAKllLAM v. INDIAN EXPLOSIVES LTD.

The Judgment of the Court was delivered by

TULZAPURKAR, J. The co!I!Itl.on question raised in these appeals is whether the sales effected by the responddnt-assessee in the three concerned years of gooG.s imported and supplied to customers on the strength of Actual Users' Import Licences of the customers F were exempt from sales tax under the Kerala General Sales Tax Act, 195u on the ground that these were sales "in the course of import of the goods into the territo·ry of India".

The responctent-assessee deals in chemicals, dyes, etc. The concerned assessment years are 1961-62, 1%2-63 a11d 1963-64. The G respondent-assessee was a~sessed to sales tax under the General Sales Tax Act 195U on the turnover of sales effected by them in those years of goocis imported on the. strength of the customers' Actual Users Import Licences and supplied to them. Such turnover subjected to tax was to the tune of Rs. 3,15,586.19 in the year 1961-62, Rs. 13,40,949~98 in the year 1962-63 and.Rs. 4,03,427.72 !I in the year 1963-6'-+· The rcspcndent-assessee contended that

626 SUPREME COURT l<EPORTS [1985] SUPP.2 s.c.R.

A these sales were in the course of import of goods into Ind.la and hence not taxable by virtue of Art. 286(l)(b) of the constitu- tion. The contention was negatived by the assessing authority as also by the Appellate Assistant Collllllissioner but the Appellate Tribunal in second appeal accepted the contention and held that the disputed turnover in esch yesr was not taxable. In the B revisions preferred by the Deputy Comnissioner, the High Court confirmed the Tribunal's view. In doing so the High Court consi- dered the several decisions that were cited before it and Ulti- mately following the test laid down by this Court in Ben Gorm Nilgiri Plantations Company, Cooooor and Ors. v. Sales Tax Officer, ,special Circle J!rnaku!Bll & Others [1964] 7 SCR 706, and mainly relying upon another decision of this Court in K.G. Kbosla c & Co. (Pvt.) Ltd. v. Deputy Camrtssiooer of Comnercial Tax, Madras Division, [1966] 3 SCR 352 =AIR 1966 SC 1216, it took the view that the sales covered by the disputed turnover in the facts and circumstances of the case were sales in the course of import. , :rhe Revenue has come up in appeal to this Court.

It was not disputed that goods were imported, by the D respondent-assessee in the strength of the Actual Users' Import Licences.that had been obtained by the customers and supplied to them for use by the latter in their factories. The sales in questioU were put through by the reSpondent-assessee, as found both by the Tribunal and the High Court, in the following manner. The indigenous purchaser for example M/s. Hindustan Insecticides E Limited in Kerala, used to place orders with respondent-assessee quoting his Import Licence Number, quantity of goods, rate, etc. as agreep. to by previous correspondenc:;:e with the r-~spondent­ assessee; the respondent-assessee th~n placed orders with the foreign supplier for the supply of the goods and in such orders the name ~f the, local purchaser who required the goods as also its licence numbers, were specified; the actual import was done on the: strength of two documents like (a) Actual Users Import Licence and (b) Letter of Authority issued by Chief Controller of Imports and Exports whereunder the local purchaser was authorised to permit _the respo~ent-asse.ssee on his behalf to import the goods, ,to open letters of credit and make remittance of foreign exchange against the said licence to the extent of value speci- fied therein. , The import licence expressly contained two condi- tions, · (i) that the goods imported will be the property of tl)e licenc.,C.holder at the time of clearance through the Customs and (ii) that the goods will be utilised only for consumption as raw material or accessories in the licence-holder's factory and that no portion thereof will be sold to or be permitted to be utilised

COMMR. OF AGRI. TAX v. INDIAN EXPLOSIVES [TULZAPUI<KAR, J.] 627

A by any other party. Reading these two documents together it was clear that the import of the goods by the respondent-assessee was for and on behalf of the 1¢cal purchaser and the respondent- assessee could not, without committing a breach of the contract, divert the goods so_ imported for any purpose. On receipt of the goods the respondent-assessee used to invoice the· local B purchaser. Having regard to the terms and conditions on which .the respondent assessee imported the goods and the manner in ·which the transactions were put through, it cannot be disputed that there was an integral connection between the sale to the local purchaser and the actual import of the goods from the foreign supplier. In other words it is clear that the movement of the goods from the.foreign country (here the United States) to· India c was in pursuance of the conditions of the pre-existing contract of sale between the respondent-asses see and the local purchaser• If that' be so the view of the Tribunal and the High Court that the ·sales in questi9n were in the course of import will have to be upheld. D

The ·test of integral connection or inextricable link between the sale ·and the actual import or export in order that the sale .could become a sale in the course of import·or· export had been cl.early enunciated by this Court in Ben Gorm Ni.lgiri Plantal:ions Company's case (supra). There the question related to sale of tea which was claimed to be in the course of export· out of the tesritory of India and though by majority it was held that the sales in question were not "in the course of export", the Court at. p.711 of the .Report laid down the test thus:·

"A sale in the course of export predicates a connection between. th~ .sale- and exp<>"rt, the two activities being so integrated that the connection between the two cannot be voluntarily interrupted, without a breach of the contract of the compulsion arising from the nature of the transaction. In this sense_to constitute a sale in the course of export it may be said 'that there must be an intention on the part of both the buyer and the seller to export, there must be an actual export. The obligation may arise by reason of statute, contract between the part.ies, or from mut~1· understanding o.r; agreement between them, or even from the nature_of the transaction which links the sale to export. A transaction of sale which is a 'H preliminary to export of the commodity sold may be regarded as a sale for export, but is not necessarily

p. 628

A to be regarded as one in the course of export, unless the sale occasions export. And to occasion export there must exist such a bond between the contract of · sale and the actual exportation, that each link is inextricably connected with the one ii:wiediately preceding it. Without such a bond, a transaction cf B sa1e cannot be caned a sale in the course of export of goods out of the territory of India."

Conversely, in order that tne sale should be one in the course of import iC must occasion the import and to occasion the import there must be integral connection or inextricable link between the first sale foll.owing the import and the actual import c provided by an obligation to import arising from statute, contract or mutual understanding or nature of the transaction whi.ch lillks the sale to import whicn cannot, without collJllitting a breach of statute or contract or mutual understanding, be sapped.

Counse). for the appellant attempted to suggest that the aforesaid test of integral connection or inextricable link. D between the sale and the actual import or export in order that the sale could become a Pale in the course of impart or export has been diluted or deviated from in Coffee Board, Baugalore v. Joint Commercial Tax Officer, Madras & ~J:Jr, [1970) 3 SCR 147, hut the suggestion has to be rejected. We may point out that such suggestion was expressly rejected aod the observations regarUing two independent sales in that case were properly explained as appropriate to the facts of that case by this Court in State of Bihar & An.r. v. Tata Engineering & Localotive Go. L!:d. [ 1971] 2 SCR 849, where the test of integral connection or inextricable link was reaffirmed as a correct and well-settled test to decide the question. . F CoWlSel for the appellant fairly conceded that the facts in K.G. llliosla. & Co. 's ca..e (supra) were on all fours with the facts obtaining in the instant appeals and that the ratio of that decision would appear. to govern the question arising in these appeals, but he contended that a different view has been taken by this Court in l'J.,, Biooni Bros (I.') I.t:d. v. Ufiloo of lDd1a & Otilers,_[1974] l SCC 459, and in view of this later decision the High Court ought not to have applied the ratio of z:.G. Xbosla & Co. 's decision to this case. It is not possible to accept this contention as in our view lliD8ni Bros's case is clearly distinguishable on two material aspects. In that case the assessee itself held the import licence ancl the goods WU11 imported on the strength of such import licence and not on the

COOMR. OF AGRI. TAX v. INDIAN EXPLOSIVES [TUIZAPURKAR, J. J 629

A strength of any Actual Users Licence as is the case here. Secondly, unlike in the present case there was no term or condition prohibiting diversion of the goods after the import. In fact, it is these two factors obtaining in the instant case which establish the i.ntegral connection or inextricable link between the transactions of sale and the actual import making the sales in the course of import. In fact as pointed out earlier, the E movement of the goods from the foreign country to India was in pursuance of the requirements flowing from the contract of sale between the respondent-assessee and the local purchaser and as such the sales in question 1m1st be held to be in the course of import. · c The view of the Tribunal and the High Court is confirmed and the appeal8 are dismissed. No order as to costs.

S.R. Appeal dismissed •

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