Judgment:
K. S. Paripoornan, J.
1. The Revenue is the revision-petitioner in these revisions. In the first four revisions, the assessee is common. In T.R.C. No. 139 of 1988, the assessee is a different person. The question that arises for consideration is the same. The matter relates to the assessment years 1979-80, 1980-81, 1981-82 and 1982-83. The respondents/assessees are dealers in manure. The manure was supplied by Heera Crushing. Company (P.) Ltd., Rajasthan. One A.V. Yohannan and Sons, Cochin, was the distributor of the goods. The assessees pleaded that A.V. Yohannan and Sons, Cochin, is the first dealer of the goods in this State and so the assessees being the second dealers in the State are not taxable. The assessing authority negatived the said plea, by placing reliance on the decision of this Court in A.L. Antony v. State of Kerala [1978] 42 STC 180. It was held that the transaction was one in which the first point of sale in Kerala arose in the hands of the assessees and so tax is leviable against the assessees. This decision was affirmed by the first appellate authority. In second appeal, the Appellate Tribunal, after adverting to the rival contentions, by an exhaustive common order dated November 16, 1987, upheld the plea of the assessees and held that the assessees were only second dealers in the State and so the assessees are not liable to be taxed on the second sale of goods in the State. Aggrieved by the aforesaid decision of the Appellate Tribunal, the Revenue has come up in revisions.
2. We heard counsel for the Revenue, Mr. N.N. Divakaran Pillai. It was argued that in this case the Appellate Tribunal failed to give effect to Section 3(b) of the Central Sales Tax Act and was in error in holding that the assessees were only second sellers of goods in question in the State. We are unable to accept the said plea. The goods (manure) were transported from Rajasthan to Kerala. It is true that the goods were taken delivery by the assessees in Kerala. But, it is admitted that the Rajasthan dealer issued invoices in the name of A.V. Yohannan and Sons, Cochin. A.V. Yohannan and Sons, in turn, raised another bill on the assessees. In that bill, A.V. Yohannan and Sons charged sales tax on the said consignments. A.V. Yohannan and Sons also issued a certificate to the assessees, in the instant case, as envisaged by Rule 32(13) of the Kerala General Sales Tax Rules, 1963. There is no plea or material to hold that A.V. Yohannan and Sons was an agent or intermediary of Rajasthan dealer, Heera Crushing Company (P.) Ltd. The terms of the contract of supply are not in writing. It is also to be noted that A.V. Yohannan and Sons have agreed to be assessed as the first sellers of this item in the State. A.V. Yohannan and Sons are independent registered dealers. In so far as it is not proved that A.V. Yohannan and Sons is only an intermediary or agent, and it is an independent registered dealer, that A.V. Yohannan and Sons have drawn separate sales bills on the assessees for the various sales effected by them and have also collected sales tax due and A.V. Yohannan and Sons have issued certificates as envisaged by Rule 32(13) of the Kerala General Sales Tax Rules, it could only be inferred that the contract to supply goods for the assessees was between A.V. Yohannan and Sons and the assessees. That is a distinct and different contract, in no way related to the contract by which A.V. Yohannan and Sons obtained the goods from the Rajasthan dealer. There is no material to hold that the movement of the goods from Rajasthan to this State was as a result of any contract between A.V. Yohannan and Sons and the assessees or that it Sale--Ed was in the course of inter-State trade. On the facts found by the Tribunal, the conclusion that there is no sale of manure by the Rajasthan dealer to the assessees, that A.V. Yohannan and Sons have never acted as an agent or intermediary so as to make the assessees the receiver of the goods in Kerala and the indication afforded by non-issue of C forms by the assessees reinforce the conclusion that the plea of the assessees that they were only second sellers of the manure in this State, is justified in law.
3. We are of the view that the decision of the Appellate Tribunal does not call for any interference. We dismiss these tax revision cases.