COMMISSIONER OF COMMERCIAL TAXES, MYSORE BANGALORE versus HINDUSTAN AERONAUTICS LTD.

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B

COMMISSIONER OF COMMERCIAL TAXES, MYSORE BANGALORE v.

HINDUSTAN AERONAUTICS LTD.

December 17, 1971 [S. M. S!KRI, C.J., J. M. SHELAT, I. D. DUA, H. R. KH.\NNA AND G. K. MITTER, JJ.)

Sales Tax-Contract for manufacture and supply of railway coaches

If sale or works-contract.

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The correspondence between the Railway Board and the respondent ( "'~"ssec regarding the terms and conditions for the manufacture and supply of railway coaches. and the indemnity bond in respect of the contract, disclosed that:

(i) The Railway bookod capacity of the assessee for the purpose of

construction of railway coaches;

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(ii) an advance, on account, was made to the extent of 90% of the value of the material on the production of a certificate by the inspecting autho'rity.

(iii) the material used for the construction of coaches before its use

was the property of the railway;

(iv) there was no possibility of any other material being used for the

cons.truction, 1a.nd

(v) the words used in the contract were. 'manufacture and supply of

the following coaches.'

On the question whether there was a sale @f railway coaches liable

to sales tax. or only a \\'orks·contract,

HELD : The answer to the question whether a contract is a works· contract or a contract of sale depends upon the construction of the terms of the contract in the light of surrounding dircumstances. [935 A-Bl

( l) In the present case. when all the material used in the construction of a coach belonged to ·the Railways there cannot be any sale of the It was a pure works-contract, the difference between the coach itself. rrico of a coach and 'the cost of material being only the cost of service rendered by the ass.ossee. [935 G-Hl

( 2) Whetbor the wheelsets and underframes were supplied free of

cost or not makes no essential difference. [936·· A-Bl

( 3) The material and wage escalator and adjustments regarding final

price mentioned in the contract are neutral factors. [93501

State of Gujamt v. Kai/ash Engineering Co., 19 S.T.C. 13 (S.C.)

followed:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 710 of

1968.

Appeal from the .iudgment and order dated March 1, 1967

of the Mysore High Court in Sales Tax Appeal No. 8 of. 1966.

'928

SUPREME COURT REPORTS

[1972] 2 S.C.R.

Somanatha Iyer, R. B. Datar and M. S. Narasimhan, for the

:appellant.

S. T. Desai, Mrs. A. K. Verma, J.B. Dadachanji, 0. C. Mathur

filld Ravinder Narain, for the respondent.

B. Sen, Santosh Chatterjee, G. S. Chatterjee and P. K. Chakra

.varti, for intervener No. 1.

D. Goburdhun, for intervener No. 2.

The Judgment of 'the Court was delivered by

Sikri, C.J.

In this appeal by certificate granted by the High Court of.l\1ysore the only question involved is whether the delivery by the respondent-Hindustaill Aeronautics Ltd.-hereinafter re ferred ito as the assessee-to the Railway Board of railway coaches model 407, 408 -and 411 is liable 10 sales tax under the Central Sales Tax etc.

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The Commercial Tax Officer, by assessment order dated March 28, 1964, in respect of the assessment year 1958-59, in cluded the turnover in respect of the supply of these coaches. The .Sales Tax Officer rejected the contention of the assessee that there was no sale involv-~d in the execution of the works-contract in view of certain decisions of the High Courts; e.g., McKenzies Limited v. The State of Bombay(1) and Jiwan Singh v. S1ate of Punjab(').

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In appeal, the Deputy Commissioner of Commercial Taxes In revision the Commissioner of Commer

confirmed the order. cial Taxes also came to the same conclusion. He observed :

"Th.e contracts specifically mentioned

the that under-frame shall always remain the property of the Railway Board. On the other hand, the order placed with the assessee company here was for the 'manufac · ture and supply' of railway coaches. The payment to the assessee company is specifically as 'price'. The conditions normally included in contracts for works are absent in. this order."

referred to

He further observed :

" ... I would like

to reiterate here that even the actual contract is for manufacture and supply of rail coaches. There is no mention that the rail coaches are to be constructed on 1the underframes of the indentor ........ If it was really a works contract the under-

.(J)

I J S.T.C. 602.

(2) 14 S.T.C. 957 •

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c.C.T. V, HINDUSTAN AERONAUTICS LTD. (Sikri, C./.) 929'

to

transferred

frames would have been made available for construc tion instead of being 'supplied free of cost' and the in den_tor's lien on diem would have been made clear. The plain IM.llning of the contract is that the underframes were free of cost by that after the Railway Board and construction of rail coaches on them, the rail coaches were sold to the Railway Board at the agreed price. The agreement does not also contemplate any inspec tion in the course of eXecution as would normally be provided for in a works contract. The only inspec tion is after completion and at Perembur."

the assessee company

He thought that case of the assessee in respect of model 4U railway coaches was worse. Regarding ithe financial arrange ment between the Railway Board and the assessee, he observed :

"The Railway Board made only advance payments for purchase of materials and did not itself procure the material and supply them to the assessee company. The conc!ition that the ma:terials become property of the Railway Board as and when purchased is only for security for the ad purposes of providing adequate vances. the materials can be In the circumstances, deemed to be hypothecated to the Railway Board and the the advance payments are really part payment of final price. The transaction relating to Rail coache< of model 411 is clearly a sale."

He, therefore, confirmed the appellate order of the Deputy Com missioner.

The assessee then took an appeal to the High Court of Mysore· under s. 24(1) of the Mysore Sales Tax Act read with s. 9(3) of 'the Central Sales-tax Act. The High Court was not satisfiad· with the m;iterial on record and directed that a report be sent on three points, viz :

" ( i) Whether and if so to what extent the assessee has drawn advance payment from the Railway Board in respect of the material utilised for completing the contracts in question;

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(ii) Whether any material, in respect of which no advance have been drawn, has been utilised by the assessee. for completing the contracts; and

(iii) Whether the assessee has .used for completing the con'!racts any material not specifically procured for the purposes of completing the contracts."

930

SUPREME COURT REPORTS

(1972] 2 S.C.R.

The Commercial Tax Officer submitted his report, and certain

extracts may be reproduced below :

"My findings revealed 1hat as and when they pur chased materials, they sent to the Railway Board 'an invoice' accompanied by a list of the details regarding the m<1terials purchased. 90 per cent of the value of these materials was then paid to the company after inspection of the materials by the board's representa tive. Invoice No. 31009 of 15-10-1956 is obtained as a sample. This invoice shows that materials for the value of Rs. 2,60,374-12-0 were purchased~ the com pany for 407 model coaches. The details of the mate rials are given in list attached to the invoice. The in voice and the list were sent to the board with a cover ing letter dated 15-10-1956 asking payment of Rs. 2,34,517-4-0 being 90 per cent of the invoice amount. The amount of this invoice is included in the Board's remittance note No. 1290 of 30-10-195.6 and a cheque was issued to the company for the total of several such invoices. The amounit of received on 30-10-1956 was Rs. 22.90,719,0-0."

the cheque

He concluded :

"(I ) It is not possible to specify the exact am aunt received from the board as advance payments. It is said that the construction was spread out more than one year and a running account was maintained showing the debi's and credits for this coaches.

(2) It is said that no materials, for which advance was not drawn, was utilised for building the coaches.

(3) It is not possible to find out whether any materials nat specifically procured for the construction of coac]:ies were used. But it is said that there is no possibilitv of any other materials being used foe this construction. The constructions are said to be done at particular shed which 'is· separrutely located. No other work is undertaken in this section. · All the materials procured for constructions of coaches are said to be kept separately in this section alone. . Materials not con nected with this work are not mixed up with the mate rials in this section. Separate stock registers are main tained fo~. this section. Receipts and issl,les of materials for the constructions of coaches are being accounted for in this register under code numbers."

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C.C.T. v. HINDUSTAN AERONAllTICS LTD. (Sikr;, C.J.)

931

A

The High Court allowed the appeal and set aside the order including the turnover relating to the construction of railway coaches, models 407, 408 and 411. Facts found by the High Court and as they appear to us are as follows :

B

On February 3, 1955, 'the Ministry of Railways wrote to the the coaching programme

Hindustan Aircraft Ltd. regarding 1955-56. The letter reads :

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"In order to book your capacity, construction of the following is planned on your works against the 1955-56 R.S.P.

1. Third Class Coaches B.G. model 407 2. Military Coaches 'M' type model 408

Total :

12-0 60

180

The intention of this intimation is to facilitate such arrangements as you may find necessary for provising for materials and for planning capacity for the stock in this as a firm question. You should therefore treat bookinJ! of your capacity."

After discussions and settl·~ment of terms between officers of •the Govi;rnment of India and of the assessee, the Railway Board placed orders with the assesse.e. The tenns jigreed between the parties are found stated in a letter of the Government of India, Ministry of Railways (Railway Board) No. 57/147/RE(163) dated May 4, 1957. This relates 'to the first of the models 407. We may extract some portions of the letter.

It is stated thus :

In continuation of

their letter No. 56/142/3/Re dated 8-1-57 t1:.e Railway Board are pleased to place an order on your work for the manufacture and supply of the following coaching stock on tenns and condi tions stated under para 2 .below :-

Description of stock Particular

specif.cation and Drawing

No.

Nos. Required

Price per coach (without wheels and axles and under~fraines'J

Item No. of Rly Board's Rolling Stock Programme 1957-58

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384

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Broad Gauge Ciassm .coachea :fµUy furnished .to model '407'

55-B-.14

180

Rs. 94,731/- {Provish;:inall

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SUPREME COURT REPORTS·

[1972] 2 S.C.R.

Following terms and conditions are relevant:,:

(j) Price

(a) The price mentioned above is for stock without wheels and lW:ls and underframes, and is provi sional. Final price will be settled by negotiations after you have submitted your claim for the coaches ordered on you up to 1954-55 Rolling Stock Programme on the basis of the wages and material escalator approved by the Board.

( b) The final price when settled shall be subject only to the Standard Wages and material esca lator clauses given below ... ' ....

( c) The final payment on completion of this order shall be subject to examination and check of your books by the Chief Administra"tive Officer, Integral Coach Factory, Perambur, Madras.

I ii) Whee/sets and Underframes

The Wheelsets and U nderframes for the stock will be supplied to you free of cost f.o.r. your work siding.

(iv) Delivery

The delivery of the above stock f.o.r. your works siding is required to commence after the completion of the stock ordered on your works against 1956-57 R.S.P. and required to be completed by January 1957, or earlier.

(v) Inspection Aurhorirv

The inspection of thic' stock shall be carried out by a representative (C.M.E. Southern Railway) before the coaches are despctched. (vi) Terms of payment

(a) Advance 'on a~count' payment to the extent of 90"'< of the value d the materials shall be made tu you on receipt of mater.ials and on produc- tion of a certificate from the Inspecting A utho- rity.

( b) Payment of

full

contract price,

'on account' payment already will be made on deli- very of coaches i;1 complete condition and good working order, duly certified by the Inspecting

less

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c.c.T. v. HINDUSTAN AERONAUTICS LTD. (Sikri, C./.} 933

Authority on the lines of procedure laid down vide Board's letter No. 571142/6/M dated 4-2-19 5 2 (Copy enclosed) .

(vii) Other terms of Contract. ( i) ................. . (ii) If and when sales tax on this order becomes p~yable under law, such payments, when made, w~l not be on your account. The Railway will not, however, be responsible for payment of the sales tax paid by you under misapprehension of law.

There is an indemnity bond in respect of this contract and

we may set it out fully.

Indemnity

"L Standing

for advance payment against contract relating to Railway Board's order for construction and delivery of all metal III class B.G. coaches now pending under orders Nos. 52-142/4/M dated 16th February, 1952 and 53/142/4/M dated 3rd March, 1953 and against contracts in respect of future orders that may be given by the Railway Board from time to time; by the Hindustan Aircraft Ltd., Bangalore represented by General Manager hereinafter called the Company in favour of the President of Union of India. The Hindustan Aircraft Ltd., hereby under take to hold at their works at Bangalore for and on behalf of the President of the Union of India and as his property in trust for him the Stores and articles in res- pect of which advances are made to them under Railway Board's letters, No 521142/4/M dated 16th February, 1952 and 53/142/4/M dated 3rd March, 1953 and hereafter to be made to the Company under future orders from the Railway Board from time to time.

2. The said stores and articles shall be such as are required of the purpose of the pending and future con tracts and .the advances made and to be made are with to out prejudicti to the provision~ of, the contract as rejection and !Uade against stores and articles rejected o~ foun~ unsatisfac tory on inspection shall be refunded nnmediately to the President of the Union of India .

inspection and any advance

3. The Company shall be entirely r_espon.sible for the safe custody and protection of the said. articles and stores against all risks till they are duly dehvered to the

12-L736Sup.CI/n

934

SUPREME COURT REPORTS

[1972] 2 s.c.a.

President of the Union of India or as he may direct and shall indemnify the President of the Union of India against ;my Joss, damage or deterioration whatsoever in respect of the said stores and articles while in our pos- session. The said articles and material shall at all times to be open to inspection of any officer authorised by Government.

4. Should any loss. of damage occur or a refund become due, the President of the Union of India shall be entitled to recover from the Company compensation for such loss or damage or the amount to be refunded without prejudice to any other remedies available to him by deduction from any sum due or any sum which at 'any time hereafter may become due to the Company under this or any other contract."

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'JNe have set out the terms of .the Indemnity Bond

in great det11il .\Jeci1µse the learned counsel for the appellant has strongly relied 0n the terms thereof.

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The text of the invoice sent by the assessee for the purpose of letter invoices. The_

receiving- 90% advance may be seen from the covering dated October 15, 1956 relating to one of the letter reads :

to our

"On account payment of 90% on, material pro- cur.:;d for rail coache~-407 and 408 model VI order. Further letter No. AI/,{nv/1169 dated Jl~l0-56 enclosing our invoice for Rs. 42,892-15-0 \Ve inyojce No. 31009 dated eiwlose herewith our J5~t(l-l956 'in duplic!l\e fc;>r Rs. 2,34,517-4-0 being 90% (ff materials procured in October 1956. Kinclly :irr~nge payr.ilent of the invoiCe alon~ith the invoice ,Please instruct your resident representa- a!J:e!!dY §.~nt. tive ,\o c)leck the stock of materials as per lists attached ,(o _our invoices and send them to the Deputy Financial A<;lvi§er and Chjef Accounts Officer, Integral Coach :Factory, }'erambur, so that )le may send his represen- tative to check the value of the materials."

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On these facts we have to decide whether there has been any sale of the coaches within the meaning of the Central Sales Tax Act. We were referred to a number of cases• of this Court and the High Courts, but it seems to us that ultimately the answer must depend upon the terms of the contract. The answer to the H !{I) .16 :;:re. HB-"fcK•nzl•~ v. Stpte of Malzarashtra. (~) fl9/l.5J 2 S.C.R. 182-Palnalk & Ca. v. Stal• of Orlssa.

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C.C.T. V, HINDUSTAN AERONAUTICS LTD. (Sikri, C./.)

935

question whether it is a works contract or it is a contract oi. sale depends upon the construction of the tenns of the contract in the In this case the salient light of the surrounding circumstances. features of the contract are as follows :

( 1 ) The Railway books capacity of the assessee for the pur

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pose of construction of railway coaches.

( 2) Advance on account is made to the extent of 90% of the value of the material on the production of a certificate by the inspecting authority.

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( 3) The material used for the construction of coaches before its use is the property of the Railway. This is quite clear from para 1 of the Indemnity Bond set out above. No other meaning can be given to the words in the bond to that "the Hindustan Aircraft Ltd. hereby undertake to hold at their works at Bangalore for and on behalf of the President of the Union of India and as his property in trust for him the Stores and articles in respect of which advances are made to them."

the effect

It seems to us clear that the property in the materials which are used for the construction of the coaches becomes the property of the President before it is used.

( 4) ·It seems that there is no possibility of any other material being used for the. construction as is borne out from the report written by the Commercial Tax Officer.

( 5) As far as the coaches of models 407 and 408 are con cerned, the wheelsets and underframes are supplied free of cost.

( 6) In the order the words used are "manufacture and sup

ply of the following coaches."

(7) The material and wage escalator and adjustments which

are mentioned in the, contract are neutral factors.

On these facts it seems to us that it is a pure works contract. We are unable to agree that when all the material used in the construction of a c?ach belongs t.o the Railways there can be any sale of the coach itself. _ ~e difference between the price of a coach and the cost of material can only be the cost of services rendered by the assessee.

If. it is necessary to refer to a case which is close to the facts of this case, then this case is more in line with the decision of

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936

SUPREME COURT REPORTS

[1972] 2 S.C.R..

this Court in State of Gujarat v. Kai/ash Engineering Co.( 1) than any other case.

The only difference as far as coach model No. 411 ls con cerned is that in that case the wheelsets and underframes are not supplied free of cost but otherwise there is no essential difference in the terms. This does not make any difference to the result.

Jn the result the appeal fails and is dismissed with costs.

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V.P.S.

Appeal dismissed.

(I) 19 s.T.c. u.