CARL STILL GMB H Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both these appeals arise out of the same facts and involve the determination of the same question, and this judgment will govern both of them.

(2.) The appellant in Civil Appeal No. 237 of 1960 is a company registered at Recklinghausen near Dusseldorf in West Germany, and carries on business in the manufacture and erection of plants and machinery. On December 19, 1953, it entered into a contract with a company called Sindri Fertilisers and Chemicals (Private) Ltd., hereinafter referred to as the Owner, for assembling and installing machinery, plants and accessories for a coke-oven battery and by-products plant at Sindri in the State of Bihar for an all-inclusive price of Rs. 2,31,50,000. The agreement provides that the appellants were to supply all the materials and labour required for the execution of the works, and that the performance was to be split up into two categories, the German section and the Indian section, that the German section was to consists of deliveries of materials from Germany Free on Board European ports, costs of technical drawings and services of German specialists, and that the Indian section was to consist of supply of Indian materials and charges for Indian labour and services to be performed in India. The German section was to be paid out of the lump sum stated above a sum of Rs. 1,31,50,000 in pounds sterling in London on account of the appellant, and the Indian section was to be paid the balance of Rs. 1,00,00,000 in Indian currency in this country, and payments were to be made in instalments, related to the progress of the contract. Subsequent to the agreement, the appellant entrusted the work of the Indian section to an Indian company called the Coke Oven Construction Company (Private) Ltd., and the Owner having accepted this arrangement the said company has become the assignee of the contract in so far as it relates to the execution of the Indian section thereof. It is this company that is the appellant in Civil Appeal No. 238 of 1960. The execution of the works was completed in 1955 as provided in the agreement, and the amounts due thereunder were also paid to the two appellants.

(3.) The present dispute between the parties is to whether the appellants in the two appeals are liable to pay sales tax on the value of the materials used by them in the execution of the works under the contract. It will be convenient now to refer to the relevant provisions of the Bihar Sales Tax Act (Bihar Act No. 19 of 1947), hereinafter referred to as the Act. Section 2(g) of the Act defines 'sale' as including a transfer of property in goods involved in the execution of contract. 'Contract' is defined in S. 2(b) as meaning any agreement for carrying out for cash or valuable consideration, the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property; and 'goods' are defined in S. 2(d) as including" all materials, articles and commodities, whether or not to be used in the construction, fitting out, improvement or repair of immovable property." 'Sale price' is defined in S. 2(h) (ii) as meaning the amount payable to a dealer as valuable consideration for the carrying out of any contract less such portion as may be prescribed, of such amount representing, the usual proportion of the cost of labour to the cost of materials used in carrying out such contract. 'Dealer' is defined in S. 2(c) as meaning any person who sells or supplies any goods including goods sold or supplied in the execution of a contract. Section 2(i) defines 'turnover' as meaning the aggregate of the amount of sale prices received and receivable by a dealer in respect of sale or supply of goods or carrying out of any contract, effected or made during a given period. Section 4 is the charging section, and it provides that every dealer whose gross turnover during the accounting period exceeded Rs. 10,000/- shall be liable to pay tax on sales which take place in Bihar, and S. 5 provides that the "tax payable by a dealer under this Act shall be levied on his taxable turnover at such rate or rates and subject to such restrictions and conditions as may be laid down from year to year by an annual Bihar Finance Act." The Bihar Finance Act defines 'taxable turnover' as meaning that part of the dealer's gross turnover on sales which have taken place in Bihar during any period subject to certain deductions. Section 9(1) of the Act provides that "No dealer shall, while being liable under S. 4 to pay tax under this Act, carry on business as a dealer unless he has been registered under this Act and possesses a registration certificate." Section 13(5) of the Act under which the present proceedings have been initiated is as follows:-