Gujarat High Court
Gujarat Ship Breakers' Association vs State Of Gujarat & on 14 March, 2014
Equivalent citations: AIR 2014 GUJARAT 172
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/614/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 614 of 2007
In SPECIAL CIVIL APPLICATION NO. 8601 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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GUJARAT SHIP BREAKERS' ASSOCIATION....Appellant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR AS VAKIL, ADVOCATE for the Appellant(s) No. 1
MR KK PUJARA, ASST GOVERNMENT PLEADER for the Respondent(s) No.
1-2
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Page 1 of 30
C/LPA/614/2007 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 14/03/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. Heard Mr. A.S. Vakil, learned advocate for the appellant and Mr. K.K. Pujara, learned AGP appearing for respondents.
2. Being aggrieved and dissatisfied with the final judgement and order dated 13.03.2007 passed by the learned Single Judge of this Court in Special Civil Application No. 8601 of 1996, the appellant has preferred the present appeal under Clause 15 of the Letters Patent.
3. The appellant filed writ petition before the learned Single Judge assailing the order dated 12.7.93 passed in Adm-work-6A-Case-43/93 by the Collector, Bhavnagar, directing confiscation of 665 filled LPG cylinders and order dated 3.8.95 passed by the Joint Secretary, Food & Civil Supplies Department in Appeal Case No. 1093-2649- J/Appeal Application No. 451 of 1993, confirming the order passed by the Collector.
4. The facts of the present case are stated in a nutshell hereinbelow:
4.1 The appellant who claims to be a Non Trading Corporation registered under the Bombay Non Trading Page 2 of 30 C/LPA/614/2007 JUDGMENT Corporations Act, 1959 is engaged in ship breaking business and is in need of bulk quantity of LPG and therefore applied for supply of LPG. Central Government accepted the application and issued an order for supply of 1000 Metric Tonnes every quarter with further conditions that the Association would endeavour to set up a bottling plant as early as possible, that the bottling plant to be set up by the Association should conform to all the safety requirements as prescribed by the Chief Controller of Explosives, apart from other procedural clearances from relevant authorities. Some other conditions regarding supply were also stipulated. Accordingly, the appellant established a bottling plant, purchased cylinders, started refilling cylinders and supplied the same on "no profit no loss"
basis to its members.
4.2 On 30th March, 1993, certain officers from the Collectorate and Civil Supplies Department carried out an inspection and after finding that the appellant did not possess necessary license under the provisions of the Gujarat Essential Articles [Licensing, Control and Stock Declaration] Order, 1981 seized 665 gas cylinders. At the time of seizure, they also found that the appellant was not maintaining records as required under 1981 Control Order. The matter was reported to the Collector, who, vide his letter dated 13.4.93 issued a notice to the appellant to show cause that why appropriate steps under the 1981 Control Order be not taken and 665 gas cylinders be not confiscated. The appellant appeared before the Collector and submitted reply on 10.5.93.Page 3 of 30
C/LPA/614/2007 JUDGMENT 4.3 After hearing the parties, the Collector held that the appellant falls within the definition of the term 'dealer' and as the appellant had not procured a license,
breach of 1981 Control Order had been committed. He also observed that an association of persons or a Non Trading Corporation would also be deemed to be and in fact, would be a 'seller' and as the appellant association has not obtained necessary requisite license, the goods could be confiscated. He accordingly directed confiscation. Being aggrieved by the said order of confiscation, the appellant preferred an appeal to the State Government, which came to be dismissed, therefore, the appellant approached the learned Single Judge of this Court. The learned Single Judge also dismissed the writ petition.
5. Mr. A.S. Vakil, learned advocate submitted that the appellant is a non-trading Corporation registered under the Bombay Non-Trading Corporation Act, 1959. He has drawn the attention of this Court to the definition of 'dealer' as defined under Clause 2(5) of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981 (hereinafter referred to as 'the 1981 Order'). Mr. Vakil submitted that though the appellant is a non-trading corporation, the appellant cannot be said to be 'engaged in the business of' purchase of any essential article. He submitted that undisputedly the appellant is not carrying out or engaged in the purchase of any essential article for doing 'business'. He further submitted that the term 'engaged in the business of' necessarily implies an activity undertaken atleast with a view to earn profit, although ultimately one may incur profit or loss. He contended that in the present case Page 4 of 30 C/LPA/614/2007 JUDGMENT when the appellant is engaged in a no profit no loss activity it cannot be said to be 'engaged in business' as contemplated under Clause 2(5) of the 1981 Order.
5.1 Mr. Vakil contended that the term 'business' necessarily implies an activity undertaken with a view to earn profits. He submitted that as the purpose of purchase of essential article is not business or to earn profit but to distribute LPG on a 'no profit no loss' basis amongst the members of the appellant, the appellant shall not fall under the definition of 'dealer as per clause 2(5) of the 1981 Order. He submitted that the appellant's purchase in bulk of LPG is not in the course of any 'business' but is for distribution amongst its members on 'no profit no loss' basis.
5.2 Mr. Vakil further contended that the learned Single Judge erred in observing that a delaer may be something different than a businessman because in a given case a supplier of the workforce may be taken to be a dealer but the manpower of such person would not be goods. He submitted that the learned Single Judge failed to appreciate in the context of the definition of 'dealer', a dealer has to be 'necessarily' engaged in the business. He submittedt hat the person not engaged in the business of purchase, sale or storage for sale cannot be a 'dealer' for the purpose of the 1981 Order. He submitted that the 'element of business' in the activity of purchase, sale or storage for sale is 'sine qua non' for anybody to be termed as a 'dealer'.
5.3 Mr. Vakil further contended that the learned Single Judge failed to appreciate that 'purchase' of LPG by the Page 5 of 30 C/LPA/614/2007 JUDGMENT appellant from the IOC refinery and distribution thereof by the appellant amongst its members only would tantamount to captive consumption. He submitted that the learned Single Judge failed to appreciate that the LPA purchased by the appellant was undoubtedly not distributed to third parties or to someone else other than the members. He submitted that the appellant never sold or distributed LPG to non-members and therefore if a non-member wanted to buy or purchase LPG, such non-member could not do so from the appellant.
5.4 Mr. Vakil further submitted that under The Static and Mobile Pressure Vessels (Unfired) Rules, 1981 (made under the provisions of The Indian Explosives Act, 1884) the appellant has been issued 'License to store compressed gas in pressure vessel or vessels" dated 13.01.1987 which is renewed upto 31.03.2016. He submitted that under Rules 57 & 58 of the Gas Cylinder Rules, 1981 (made under the provisions of The Indian Explosives, 1884) the appellant has also been issued 'License to fill compressed gas in cylinders' dated 13.01.1987 renewed upto 30.09.2015 as well as 'License to store compressed gas in cylinders' dated 13.01.1987 renewed upto 30.09.2015.
5.5 Mr. Vakil submitted that the Indian Oil Corporation Limited had also issued a certificate dated 13.12.1995 certifying that the LPG bulk supplied to the appellant is industrial LPG for ship breaking activities as per the Ministry of Petroleum approval and that the rate charged is industrial rate (non-domestic, non-essential) and not subsidized rate. He submitted that the said certificate also states that the LPG supplied to the appellant is for the appellant's own Page 6 of 30 C/LPA/614/2007 JUDGMENT consumption only i.e. for cutting and ship breaking activities.
5.6 In support of his submissions, Mr. Vakil has relied upon the following decisions:
(i) The State of Andhra Pradesh vs. M/s. H. Abdul Bakhi and Bros. reported in AIR 1965 SC 531 wherein paras 2 & 4 read as under:
"2. Section 2(e) of the Hyderabad General Sales Tax Act defines "dealer" as meaning any person. local authority, company, firm, Hindu undivided family or any association or associations of persons engaged in the business of buying, selling or supplying goods in the Hyderabad State whether for a commission, remuneration or otherwise and includes a State Government which carries on such business and any society, club or association which buys or sells or supplies goods to its members. Section 2(m) defines "turnover" as, meaning an aggregate amount for which goods are either bought by or sold by a dealer, whether for a cash or for deferred payment or other valuable consideration. By. s. 4 a tax at the rate of three pies in the rupee in I. G. currency on so much of the turnover for the year is is attributable to transactions in goods other than exempted goods is imposed. Rule 5(1) provides that save as provided in sub- rule (2) the turnover of a dealer for the purpose of the rules shall be the amount for which goods are sold by the dealer. Rule 5(2) provides that in the case of certain commodities the turnover of a dealer for the purpose of the rules shall be the amount for which the goods are bought by the dealer. Those commodities are: -
(a) Groundnut (shelled or unshelled);
(b) Bidi leaves;
(c) Tarwar and other tanning barks;
(d) Til, karad and castor seed;
(e) Cotton including kappas;Page 7 of 30
C/LPA/614/2007 JUDGMENT
(f) Linseed, turmeric, dhania and other agricultural produce including all kinds of dhals and paddy (husked or unhusked) not otherwise exempted under the said Act, but excluding cotton seed, sugarcane, tea and coffee seeds;
(g) Hides and skins;
(h) Wool, bones and horns.
4. We are unable to agree with this view of the High Court. A person to be a dealer must be engaged in the business of buying or selling or supplying goods. The expression "busi- ness"
though extensively used a word of indefinite import, in taxing statutes it is used in the sense of an occupation, or profession which occupies the time, attention and labour of a person, normally with the object of making profit. To regard an activity as business there must be a course of dealings, either actually continued or contemplated to be continued with a profit motive, and not for sport or pleasure. But to be a dealer a person need not follow the activity of buying selling and supplying the same commodity. Mere buying for personal consumption i.e. without a profit motive will not make a person, dealer within the meaning of the Act, but a person who consumes a commodity bought by him in the course of his trade, 'or use in manufacturing another commodity for sale, would be regarded as a dealer. The Legislature has not made sale of the very article bought by a person a condition for treating him as a dealer: the definition merely requires that the buying of the commodity mentioned in Rule 5(2) must be in the course of business, i.e. must be for sale or use with a view to make profit out of the integrated activity of buying and disposal. The commodity may itself be converted into another saleable commodity, or it may be used as an ingredient or in aid of a manufacturing process leading to the production of such saleable commodity."
(ii) M/s. Hindustan Steel Ltd. vs. The State of Orissa Page 8 of 30 C/LPA/614/2007 JUDGMENT reported in AIR 1970 SC 253 wherein relevant paras read as under:
"At the instance of the Company the Tribunal referred six questions to the High Court of Orissa under s. 24(1) of the Orissa Sales Tax Act, 1947. The questions were:
"A. Whether in the facts and circumstances of the case Messrs. Hindustan Steel Ltd. can be held to be a 'dealer' within the meaning of s. 2(c) of the Orissa Sales Tax Act ?
B. Whether the sale of materials by the Company to different contractors working for the company for which sales tax is sought to be assessed amounts to 'sale' within the meaning of s. 2(g) of the Act ? C. Whether the accrual of some profit in the absence of any motive to make such profit can make the assessee a 'dealer' under the Act and whether in the circumstances of the case, the Tribunal was justified in coming to a finding that there was profit making motive on the part of the Company ?
D. Whether in view of the definition contained in s. 2, cl. (h) as it stood prior to the amendment of the provision by Act 18 of 1959, the supplies of materials can be treated as 'sale price' in the hands of the assessee ?
E. Whether in the facts and circumstances of the case. the amount received by the assessee in respect of tender forms can be said to be 'sale price'?
F. Whether the Tribunal is right in holding that penalties under s. 12(5) of the Act had been:rightly levied and whether in view of the serious dispute of liability it cannot be said that there was sufficient cause for not applying for registration ?"
The High Court answered the questions A, B, C, D and F in the affirmative and question E in the negative.
A person to be a dealer within the meaning of the Page 9 of 30 C/LPA/614/2007 JUDGMENT Act must carry on the business of selling or supplying goods in Orissa. The expression "business" is not defined in the Act. But as observed by this Court in State of Andhra Pradesh v. Abdul Bakhi and Bros.
"The expression 'business' though extensively used is a word of indefinite import, in taxing statutes. it is used in the sense of an occupation, or profession which occupies the time, attention and labour of a person, normally with the object of making profit. To regard an activity as business there must be a course of dealings, either actually continued or contemplated to be continued with a profit motive, and not for sport or pleasure ."
The sales tax authorities and the Tribunal have held that the Company was carrying on business of selling or supplying materials to the contractors and with that view the High Court agreed. The Company purchased bricks manufactured by its own contractors and sold the bricks to the building contractors at a flat 30% premium over the purchase price in the case of "second class bricks"
and 25% premium in the case of "First class bricks". Steel, cement and other materials were initially supplied at 3-1/2% premium over the purchase price paid by the Company. It was contended on behalf of the Company that merely because the price charged to the contractors exceeded the price paid by the Company for acquiring the materials, motive of the Company to carry on business in building materials for profit, cannot be inferred. The Company, it is true, maintained no separate accounts relating to the expenditure incurred by it for overhead and other charges in respect of those materials. Before the sales-tax authorities counsel for the Company also conceded that the Company had not maintained separate accounts from which. it could be proved that the transactions of supply of bricks, cement, steel and other commodities resulted in no profit. The High Court observed: "It is the Stores Department of the company as a whole which deals with the purchase, storage and sale of all the goods required both for acquisition and issue of materials Page 10 of 30 C/LPA/614/2007 JUDGMENT to be used for the construction and operation work of the Company ......... the Company had to construct not only the buildings but also roads, railways, etc., acquire machinery and perform other multifarious activities connected with the establishment of steel plants and construction of the township. There is nothing in the statement to show that the Company had at any time even contemplated the allocation of the total expenditure incurred for the maintenance of its Stores Department between the expenditure incurred in respect of the goods namely bricks, cement, steel etc. and other goods. If such allocation was not even contemplated, it will be unreasonable to say that when these goods were sold to the building contractors at the prices mentioned above, the intention of the Company was merely to utilise the difference in price to meet the overhead charges in respect of these articles and that there was no profit making motive." "
14. But neither the Tribunal nor the High Court has referred to this important piece of evidence and we are unable to decide these appeals unless we have an additional statement of facts in the light of the relevant evidence as to whether the excess charged over and above the price which the Company paid for procuring cement and steel (expressly called storage charge) and bricks was intended to be profit. If the Company agreed to charge a fixed percentage above the cost price, for storage, insurance and rental charges, it may be reasonably inferred that the Company did not carry on business of supplying materials as a part of- business activity with a view to making profit.
15. The Tribunal's statement of case is bald and in recording its findings the Tribunal has ignored a very important piece of evidence. To enable us to answer the questions referred, it is. necessary that the Tribunal should be called upon to submit a supplementary statement of the case on the questions whether the Company charged any profit apart from the storage charges for supplying cement and structural steel, and whether the Page 11 of 30 C/LPA/614/2007 JUDGMENT difference between the price charged to the contractors and the price paid by the Company to its suppliers for bricks was not m respect of storage and other incidental charges. The Tribunal to submit the supplementary statement of case to this Court, within three months from the date on which the papers reach the Tribunal."
(iii) Government Medical Store Depot vs. Superintendent of Taxes & Others reported in (1985) 4 SCC 239 wherein it is observed as under:
"... In the instant case, as already shown, the appellant had from the very beginning taken the stand that its transactions were-without any profit motive. The burden lay on the Revenue to show that these transactions were carried on with profit motive, whether profit was actually earned or not being of no material importance, and no investigation had been made by the respondent into this aspect when it made the assessments. Nor was the High Court called upon to record such a finding on the basis of any material placed and the respondent remdined satisfied by pleading a bare denial to the assertion in the writ petitions supported by the scheme and its terms. Mr. Ahuja for the respondent strenuously pleaded that the matters should go back and the respondents would be given an opportunity of determining the question as to whether the transactions had been carried on with any profit motive. We are concerned with the years 1965-68. About two decades have already rolled by. We may point out that at the instance of Mr. Ahuja we had called upon the appellant to produce its record and appellant's counsel on the subsequent date reported that the record were not available to be produced. In these circumstances, we do not think it proper to remand the matters to give the respondent an opportunity of determining the question of profit motive."Page 12 of 30
C/LPA/614/2007 JUDGMENT
(iv) Government Medical Store Depot, Karnal vs. State of Haryana and Another reported in AIR 1986 SC 1902 wherein para 13 reads as under:
"12. It will be noticed that the definition of the word 'dealer' in s. 2(d) of the Punjab Act does not treat the existence of a profit motive in the business as an immaterial factor. In Govt. Medical Store Depot, Gauhati v. The Supdt. of Taxes, Gauhati & Ors, [1985] 2 SCALE 600, the question was whether a Government Medical Store Depot set up at Gauhati by the Central Government in the Ministry of Health, Family Planning and Urban Development, for the purpose of procuring and supplying medical stores to Central and State Government institutions could be made liable to sales tax under the Assan Finance (Sales Tax) Act, 1956 and under the Central Sales Tax Act, 1956. The appellant, the Government Medical Store Depot, took the stand that the supply of medical stores to the Government institutions were without any profit motive, on the basis of "no loss, no profit", and unless it was found that the transactions had been carried on with a view to making a profit the appellant could not be held to be a 'dealer' liable to tax. This Court observed that in the definition of 'business' the profit motive had not been omitted, and therefore without anything more it could not be said that the person carrying on those transactions was a dealer. The Court rested the burden on the Revenue to show that the transactions carried on by the appellant were carried on with a profit motive. In the end, inasmuch as the appeals before it were concerned with the years 1965-66 to 1967-68 having regard to the lapse of time the Court, while allowing the appeals and quashing the assessments, did not think it fit to remand the cases for fresh assessment proceedings."
(v) State of Punjab vs. Assessing Authority, Chandigarh reported in AIR 1991 SC 1059 wherein the Page 13 of 30 C/LPA/614/2007 JUDGMENT relevant paras are reproduced hereinunder:
"3. The State of Punjab has preferred this appeal on behalf of the Hospitality Organisation. We are of the opinion that the High Court erred in disposing of the petition before it on the ground mentioned in the judgment which had not been before, or considered by the sales tax authorities and the Tribunal. The application filed before it was one under Section 22(2)(b) of the Punjab General Sales Tax Act. Its scope was limited to examining whether any question of law arose out of the order of the Sales Tax Tribunal or not. In our opinF ion, a question of law did arise out of the order of the Tribunal as to whether the Hospitality Organisation had been rightly treated as a 'dealer' within the meaning of Section 2(d) of the Act. In our opinion, therefore, the High Court should have called for a reference from the Tribunal on the questions sought for by the appellant.
4. In this situation, we would normally have set aside the order of the High Court and directed the Tribunal to refer a case to the High Court on the questions above mentioned. However, considering that the High Court disposed of the reference application on an extraneous ground. We propose to adopt a different, rather unusual, course in the peculiar circumstances of this case. This is for the reason that, on the merits, this Court has already held in Government Medical Store Depot, Karnal v. State of Haryana , reversing the decision of the Punjab High Court in the earlier referred to, that a Government Medical Store was not liable to be treated as a dealer within the meaning of Section 2(d) of the Act because it did not carry on business with any profit motive. The same principle clearly applies to the Organisation in the present case. In other words, as a result of the decision of this Court above cited, it is obvious that the Hospitality Organisation could not have been assessed to tax under the Act. In view of this settled position we think it would be appropriate and expedient in the interests of justice to short-circuit the normal procedure of directing the High Court to call for a reference and then apply the decision of this Court Page 14 of 30 C/LPA/614/2007 JUDGMENT
- and decide the matter finally here itself. With this end in view, we shall treat the present appeal (condoning the delay involved) as one preferred to this Court from the order of the Tribunal dated 31- 1-72 deciding that the appellant-organisation was a dealer. We set aside the order of the Tribunal and hold that the Hospitality Organisation was not a dealer under the Act liable to sales tax for the assessment year 1963-64. We direct the Tribunal to proceed to give effect to this judgment. We need not formally pass orders setting aside the High Court's order rejecting the petition under Section 22(2) as non-maintainable as it has not affected the Tribunal's order. The appeal is allowed accordingly, but in the circumstances we make no order as to costs."
(vi) State of T.N. And Another vs. Board of Trustees of the Port of Madras reported in (1999) 4 SCC 630 wherein in paras 16 & 30 the Apex Court has held as under:
16. The word `carrying on business' requires something more than merely selling or buying etc. Whether a person `carries on business' in a particular commodity must depend upon the volume, frequency, continuity and regularity of transactions of purchase and sale in a class of goods and the transactions must ordinarily be entered into with a profit motive (Board of Revenue & Others vs. A.M.Ansari & Others ( 1976 (3) SCC
512). Such profit motive may, however, be statutorily excluded from the definition of `business' but still the person may be `carrying on business'.
30. In our view, if the main activity was not `business', then the connected, incidental or ancillary activities of sales would not normally amount to `business' unless an independent intention to conduct `business' in these connected, incidental or ancillary activities is established by the revenue. It will then be necessary to find out whether the transactions which are connected, Page 15 of 30 C/LPA/614/2007 JUDGMENT incidental or ancillary are only an infinitesimal or small part of the main activities. In other words, the presumption will be that these connected, incidental or ancillary activities of sales are not `business' and the onus of proof of an independent intention to do `business' in these connected, incidental and ancillary sales will rest on the Department. If, for example, these connected, incidental or ancillary transactions are so large as to render the main activity infinitesimal or very small, then of course the case would fall under the first category referred to earlier."
(vii) State of Punjab and Others vs. Guno Majra Cooperative Agriculture Service Society Ltd. reported in (2000) 9 SCC 210 wherein it is observed as under:
"3. It is not disputed that the respondent society is the Agriculture Service Society and it has got its own bye-law. The members of the Society are agriculturists, who require manure, fertilisers and implements for cultivation. The object for which the respondent Society was formed is to render service to its members for carrying out agricultural activities. One of the objects of the Society, as indicated in the bye-law, is to make arrangement for supply of agriculture requirements for its members as well as to supply manure, fertilisers, improved seeds, insecticides and other production requisites with a view to promote increased agricultural production. Another object of the Society is to give loans and also to give manure, fertilisers and improved seeds to its members on credit on 'no profit no loss' basis. Under the bye- law, it is not permissible for the respondent Society to sell fertilisers in open market or to anybody else other than its members. From the aforesaid functions of the Society it is apparent that there is no commercial or business activity involved when the Society distributes and supplies fertilisers to its members. The purpose for which the Society has been formed is to help its members in the matter of cultivation. In fact, fertilisers purchased by the Society is for supply and distribution to its Page 16 of 30 C/LPA/614/2007 JUDGMENT members and not for any commercial or business activity. In the absence of any business activity, the respondent Society could not be said to be a 'dealer' within the meaning of Clause (2)(f) of the Order and, therefore, they were not required to take licence under Clause (7) of the Order. We are in agreement with the views taken by the High Court."
(viii) Commissioner of Sales Tax vs. Sai Publication Fund reported in AIR 2002 SC 1582 wherein paras 10 & 11 read as under:
"10. The contention that the Trust in question is "dealer" within the meaning of Section 2(11) read with Section 2(5A) requires careful scrutiny. As is evident from Section 2(11), every person is not "dealer" but only those persons "who carry on the business" by buying or selling goods are regarded as "dealers". From the very definition of dealer, it follows that a person would not be a dealer in respect of the goods sold or purchased by him unless he carries on the business of buying and selling such goods. "Dealer" and "person" are separately defined in Section 2(11) and Section 2(19) of the Act respectively. "Person" means not only natural person but includes any company or association or body of individuals whether incorporated or not and also a Hindu Undivided Family, a firm or a local authority; whereas "dealer" on the other hand means only such persons who carry on the business of buying and selling of goods in the State including those who are deemed to be dealers by virtue of definition of "dealer" contained in Section 2(11) of the Act. As rightly noticed by the High Court, it is clear from charging Section 3 that every dealer, whose turnover of sale or purchase during any year exceeds the limits specified therein, is liable to payment of tax under the Act on his turnover of sales or purchases. Although the Act provides for levy of tax on the sales or purchases of certain goods in the State of Maharashtra, the levy is restricted only to sales or purchases made by Page 17 of 30 C/LPA/614/2007 JUDGMENT dealers. As is manifest from Section 3 itself, the liability to pay sales tax is only on the dealers. From the combined reading of Section 3, 2(5A) and 2(11) of the Act, it follows that the tax under the Act is leviable on the sales or purchases of taxable goods by a dealer and not by every person. From the facts of the present case, the sole object of the assessee Trust is to spread the message of Siababa of Shridi. It is also not disputed that the books and literature etc. containing the message of Saibaba were distributed by the Trust to the devotees of Saibaba at cost price. There is no dispute that the primary and dominant activity of the Trust is to spread the message of Saibaba. This main activity does not amount to "business". The activity of publishing and selling literature, books and other literature is obviously incidental or ancillary to the main activity of spreading message of Saibaba and not to any business as such even without profit motive and it is in a way a means to achieve the object of the Trust through which message of Saibaba is spread. It is clear from the Trust Deed and objects contained therein that it was not established with an intention of carrying on the business/occupation of selling or supplying goods. This being the position, it cannot be said that the Trust carries on the business of selling and supplying goods so as to fall within the meaning of "dealer" under Section 2(11) of the Act.
11. No doubt, the definition of "business" given in Section 2(5A) of the Act even without profit motive is wide enough to include any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture and any transaction in connection with or incidental or ancillary to the commencement or closure of such trade, commerce, manufacture, adventure or concern. If the main activity is not business, then any transaction incidental or ancillary would not normally amount to "business" unless an independent intention to carry on "business" in the incidental or ancillary activity is established. In such cases, the onus of proof of an independent intention to carry on "business" connected with or incidental or ancillary sales will rest on the Page 18 of 30 C/LPA/614/2007 JUDGMENT Department. Thus, if the main activity of a person is not trade, commerce etc., ordinarily incidental or ancillary activity may not come within the meaning of "business". To put it differently, the inclusion of incidental or ancillary activity in the definition of "business" pre-supposes the existence of trade, commerce etc. The definition of "dealer" contained in Section 2(11) of the Act clearly indicates that in order to hold a person to be a "dealer", he must `carry on business' and then only he may also be deemed to be carrying on business in respect of transaction incidental or ancillary thereto. We have stated above that the main and dominant activity of the Trust in furtherance of its object is to spread message. Hence, such activity does not amount to "business". Publication for the purpose of spreading message is incidental to the main activity which the Trust does not carry as business. In this view, the activity of the Trust in bringing out publications and selling them at cost price to spread message of Saibaba does not make it a dealer under Section 2(11) of the Act."
5.7 Summing up his submissions, Mr. Vakil strongly contended that the appellant is not carrying on business as a dealer of petroleum products and hence there is no breach of Section 3(b) and that in any case the petroleum product is procured by the appellant at industrial rate (non-domestic, non-essential) and that after procuring the same from oil company, bottles the same in its bottling plant and distributes the same amongst its members on no profit no loss basis and therefore the provisions of the 1981 Order are not applicable to the appellant and the appellant cannot be termed as a 'dealer'.
5.8 Mr. Vakil has also drawn the attention of this Court to paragraph 15 of the impugned judgement and order passed by the learned Single Judge and submitted that the entire Page 19 of 30 C/LPA/614/2007 JUDGMENT observations and remarks made therein are wholly out of context and unwarranted. He submitted that the said observations are required to be expunged and/or quashed.
6. Mr. K.K. Pujara, learned AGP appearing for respondent - State has supported the impugned judgement and order and submitted that the same being just and proper, no interference is called for. He submitted that the appellant had not taken any permission under the 1981 Order inasmuch as according to Section 2(5) of the 1981 Order except those who are agriculturists or oil company, everyone else has to procure the license when they are dealing with purchase and sale of any essential commodities as defined under the Act.
6.1 Mr. Pujara further submitted that looking to the definition of Sales as provided under Clause 2(21) of the 1981 Order it is clear that if any Essential Commodity is distributed even on wholesale basis, a license is required to be procured. He submitted that in the present case the appellant is purchasing LPG, bottling the same and distributing/selling it to the members against which the members are directly or indirectly having a monetary profit in the business and therefore the activity which is carried out by the appellant is covered under Clauses 2(21) and 2(5) of the 1981 Order which makes the appellant liable to procure license as he is dealing with Essential Commodities.
6.2 Mr. Pujara has placed reliance on the decision of the Apex Court in the case of Commissioner of Sales Tax vs. Sai Publication Fund (supra), more particularly para 17 which reads as under:
Page 20 of 30C/LPA/614/2007 JUDGMENT "17. This decision is directly on the point supporting the case of the respondent after noticing number of decisions on the point including the decisions cited by the learned counsel before us. It may be stated that the question of profit motive or no profit move would be relevant only where person carries on trade, commerce, manufacture or adventure in the nature of trade, commerce etc. On the facts and in the circumstances of the present case irrespective of the profit motive, it could not be said that the Trust either was "dealer" or was carrying on trade, commerce etc. The Trust is not carrying on trade, commerce etc., in the sense of occupation to be a "dealer" as its main object is to spread message of Saibaba of Shridi as already noticed above. Having regard to all aspects of the matter, the High Court was right in answering the question referred by the Tribunal in the affirmative and in favour of the respondent-assessee. We must however add here that whether a particular person is a "dealer" and whether he carries on "business", are the matters to be decided on facts and in the circumstances of each case."
6.3 In order to substantiate his case, Mr. Pujara has also relied upon another decision of the Apex Court in the case of Holani Auto Links Private Ltd. vs. State of Madhya Pradesh reported in (2008) 13 SCC 185 wherein the relevant paras read as under:
"30. Even otherwise, as regards the finding in the impugned judgment that the goods were not sold to the general public, relying on which the learned senior counsel for the appellant company has contended before us that it was not selling goods to the general public but was only an authorized distributor of the commodity to the traders, we would make two points. First, the definition of 'Dealer' does not specify that to be a 'Dealer', the goods must be sold to the general public. Secondly, if we look at the 2nd exception to the definition of 'Dealer', it says that an Oil company producing or Page 21 of 30 C/LPA/614/2007 JUDGMENT storing kerosene diesel etc. in its storage depot or installation wherefrom no sales are made to the general public would not be a 'Dealer'. With regard to this exception, we have already noted herein earlier that this exception applies only to the Oil company. Admittedly, the appellant company is not an oil company and neither is it the case of the appellant company that it is an oil company. Therefore, looking at the main part of the definition of 'Dealer', it is pertinent to note that it nowhere requires as one of its ingredients that to be a 'Dealer', the commodities should be sold to the general public.
31. The very idea of 'sale to the general public' finds mention for the first time in the 2nd exception. Does that mean that we should include this aspect i.e. 'sale to the general public' as an ingredient of the main definition. We are afraid that it is not permissible for us to do that. In this regard, we may note that the function of a proviso or an exception is that it qualifies the generality of the main enactment by providing an exception and taking out as it were from the main enactment a portion which but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of the proviso to read it as providing something by way of an addendum. In Madras & Southern Maharatta Rly. Co, Ltd Vs. Bezwada Municipality [AIR 1944 PC 71], it was held as under: -
Except as to cases dealt with by it, a proviso has no repercussion on the interpretation of the enacting portion of the section so as to exclude something by implication which is embraced by clear words in the enactment.
32. Further, as stated by Lord Watson, if the language of the enacting part of the statute does not contain the provisions which are said to occur in it, you cannot derive these provisions by implication from a proviso." [See West Derby Union Vs. Metropolitan Life Assurance Co., (1897) AC 647, p. 652].
33. The reason behind giving the above cases on interpretation of provisos and exceptions is Page 22 of 30 C/LPA/614/2007 JUDGMENT to drive home the point that in the present case, admittedly, a 'Dealer' may be any person, whether he sells commodities to the general public or not. It is only the exception, which provides that an oil company storing its goods in its storage depot or installation where from no sales are made to the general public shall not be a 'Dealer'. 'Sale to general public' therefore cannot be taken to be an ingredient of the main definition and the exception is applicable only to an oil company. In the present case, the appellant company was selling commodities to its customers or dealers, may be not to the general public, but in view of the last preceding discussion, this argument of the learned senior counsel for the appellant company does not hold any water.
Furthermore, the exception, as noted herein earlier applies only to the oil company and on this count also, the appellant company cannot claim the benefit of the exception."
[Emphasis Supplied]
7. The learned Single Judge by way of the impugned judgement and order dated 13.03.2007 in Special Civil Application No. 8601 of 1995 has observed as under:
"10. A dealer in an ordinary sense or in commercial sense or in the business world may be somebody who is earning some profit on the dealings which he enters into. A dealer may be something different than a businessman, because, in a given case, a supplier of the workforce may be taken to be a dealer but the manpower of such person would not be goods. A dealer would be a person who is employed in some business of sale and purchase of the articles. In the free zone or free world, a person may deal in any subject, but when the law says that if he wants to deal in particular items, then, he must obtain a license from the authorities, then, such person is required to deal in those items or Page 23 of 30 C/LPA/614/2007 JUDGMENT commodities only after obtaining a license from the competent authority. According to the definition, the word 'dealer' would include a person, a firm, an association of persons, a company, a corporation or a cooperative society. It does not say that the firm is required to be registered or unregistered, an association of persons is required to be registered or unregistered or so. Once an association of persons is taken to be a dealer because of the definition, then, the second question would arise that whether such person or association of persons or a corporation is engaged in the business of purchase, sale or storage for sale of any essential article. In the present case, undisputedly, the petitioners are purchasing LPG from the Central Government after paying the price.Once somebody pays money, for getting benefit, by purchasing an article, or to have an ownership over that article, then, such person would be said to have purchased that particular article or commodity from the other person who earlier owned it. In the present case, Indian Oil Corporation, under the directions of the Central Government was to supply 1000 Metric Tonnes LPG every quarter to the petitioners after receiving the price of the consignment. The moment they received the price and supplied the LPG, they became sellers, and the petitioners, on payment of the price to the erstwhile owners, after receiving the goods would become purchaser. In a given case, where, goods are covered under the Sale of Goods Act, then, delivery of the commodity or goods in itself would conclude transaction of sale and purchase. In a given case, one cannot say that though there is a seller, who after receiving the price of the consignment gives possession of the property to someone else, but there is no purchaser. For complete transaction of sale or purchase, there have to be a seller and a purchaser. Seller must own a commodity or property and purchaser must acquire property in the goods by paying money. It is not disputed before me that petroleum products, specially, LPG is an essential article. Once it is held Page 24 of 30 C/LPA/614/2007 JUDGMENT that any essential article or essential commodity was sold by someone and it was purchased by someone, the purchaser if he proves that it was for captive consumption and was not to be distributed to third parties or to someone else, then, such purchaser may not fall within the mischief of the term 'dealer'. Present is not a case of captive consumption. Here, association purchases the property in its own name, it does not purchase the property in the name of its members. A Non Trading Corporation, which is registered under the provisions of law can sue or be sued in its own name, it is a legal entity and has juridical capacity to sue and to be sued. Once a Non Trading Corporation owns an article and is involved in sale and purchase of the articles, then, such Non Trading Corporation would become a dealer, because, it purchases property in its own name and thereafter distributes it its members. Present is not a case where the petitioners say that after receiving the consignment they are directly supplying the goods to their members, their case is that they are working on "no profit no loss" basis, however, the fact remains that they have established a bottling plant, they are refilling the bottles and are supplying filled gas cylinders. The moment they say that they are undertaking some expenses for refilling and supplying the gas cylinders to their members, then, they become dealers also. They cannot be allowed to say that because goods are purchased for consumption by the members and as the Corporation is supplying the goods to the members, there is no transaction of sale. It is not disputed before me nor it is the case of the petitioners that after purchasing the goods from the Indian Oil Corporation, they are selling the same to their members, they are receiving price or cost of the articles from their own members. Qua members, the petitioners become a seller and such member becomes purchaser, on the second occasion, the petitioners would become a dealer. The definition further says that the persons so included in the definition if are Page 25 of 30 C/LPA/614/2007 JUDGMENT engaged in the business of purchase, sale or storage for sale of any essential article, whether or not in conjunction with any other business and includes its representative, agent or as the case may be, commission agent. Their case is that they are a Non Trading Corporation. Even if they are representative of the members or agent or commission agent, then again, definition would cover them within the sweep of 'dealer'.
11.Provisions of 1981 Control Order
clearly provides that essential article
would mean articles specified in
Schedule-1. Schedule-1 includes petroleum products.
12.Clause-[21] of Para-2 provides the definition of the word 'sale'. It says that sale in relation to any kind of essential article includes supply or distribution of an essential article and the word 'sell' with all its grammatical variations and cognate expression shall be construed accordingly. Case of the petitioners is that after receiving the supply from the Indian Oil Corporation they are distributing the same to their members. Once they admit that they are supplying or distributing LPG after bottling it, then also, their act would fall within the mischief of 'sale'. Once it is held that the activity of the petitioner is of sale and purchase, then, there is no exemption from clause [5] of Para 2 of 1981 Control Order. It is also to be seen that the Collector has found that the petitioners were not maintaining the records as required under the Liquified Petroleum Goods [Regulation of Supply & Distribution] Order, 1988.
13.It is also the submission of the petitioners that as they are bulk consumers or bulk purchasers for benefit of members, they would not become dealer. I am unable to hold in favour of the petitioners, because, a bulk purchaser would be a dealer under 1981 Control Page 26 of 30 C/LPA/614/2007 JUDGMENT Order."
8. It is very relevant at this juncture to peruse the definition of dealer as proved under Clause 2(5) of the 1981 Order as the entire issue in the present case revolves around the interpretation of the said definition. Accordingly, clause 2(5) details the definition of dealer as under:
"[5] "dealer" means a person, a firm, an association of persons, a company , a corporation or a cooperative society engaged in the business of purchase, sale or storage for sale of any essential article, whether or not in conjunction with any other business and includes his representative, agent or, as the case may be, commission agent, but does not include--
[a] an agriculturist who deals in his own agricultural produce but does not engage in the business of purchase, sale or storage for sale of any essential article not produced by him;
[b] an oil company dealing in petroleum products;"
[Emphasis Supplied] 8.1 Though a point has been taken in this appeal as well as before the learned Single Judge that the appellant cannot be regarded as a "dealer" for the purposes of the 1981 Order in view of the fact that the distribution of LPG cylinders was effected by the appellant on a no profit no loss basis, the said contention cannot stand in view of Clause (5) to Para 2 of the 1981 Order, which clause defines the expression "dealer". While interpreting the definition of dealer, it is clear that a person or association engaged in the business of purchase, sale or storage for sale of any essential activity is a dealer.
Page 27 of 30C/LPA/614/2007 JUDGMENT There can be no doubt that the appellant was functioning as a purchaser by purchasing LPG from the Central Government and thereafter distributes it to the members for consideration which amounts to selling the same though not for profit. Hence, by virtue of the terms of the above definition, the appellant has to be deemed to be a dealer for the purpose of the 1981 Order. For the purpose of the said definition, the supply or distribution of the goods need not be in the course of business and hence the existence or otherwise of a profit- motive is of no material relevance. The learned Single Judge was, therefore, right in holding that the appellant was a "dealer" in respect of the transactions of distribution of LPG cylinders.
8.2 The issue is very well settled by the decision of the Apex Court in the case of Holani Auto Links Private Ltd. (supra) wherein the Apex Court has categorically held that a 'Dealer' may be any person, whether he sells commodities to the general public or not. In common parlance, business can be termed as an organization or enterprising entity engaged in commercial, industrial or professional activities. A business can be a for-profit entity, such as a publicly-traded corporation, or a non-profit organization engaged in business activities, such as an agricultural cooperative or non-trading corporations. Basically, business is any activity of making, buying, or selling goods or providing services in exchange for money be it on profit basis or on non-profit basis. In the present case, it is clear that the appellant is into the business of LPG cylinders which is an essential article. Therefore when the appellant is engaged in the business of purchasing the cylinders from the Central Government and selling or Page 28 of 30 C/LPA/614/2007 JUDGMENT distributing it to its members for money in exchange, he shall be termed as a dealer under the provisions of law irrelevant of the fact whether profit or loss is incurred or not incurred in doing so.
8.3 On the contrary, if the interpretation as put forward by the appellant is accepted, then every person shall start his business without any profit or loss without any license which is not the object of the Essential Commodities Act. Liquified Petroleum Gas (LPG) without any dispute is an essential commodity and therefore when the appellant is dealing in this essential commodity he is required to procure license for purchase, storage and/or selling of LPG cylinders which in this case is not taken by the appellant and therefore the order of confiscation of 665 LPG cylinders by the Collector was confirmed by the appellate authority as well as the learned Single Judge.
8.4 The fact that the appellant is bottling the product and selling/distributing the same for monetary returns which may not be for profit cannot be lost sight of. The decisions cited by learned advocate for the appellant are duly perused by this Court, however, we feel that they being on the issue of agricultural products and tax liability, shall not be applicable to the facts of the present case as in the instant case the issue revolves around essential commodity like LPG cylinder. We are therefore in complete agreement with the reasonings adopted and findings arrived at by the learned Single Judge so far as the confirmation of the action of confiscation of the cylinders is concerned.
Page 29 of 30C/LPA/614/2007 JUDGMENT
9. So far as the observations made in para 15 of the impugned judgement and order by the learned Single Judge is concerned, we are of the opinion that the arguments advanced by the learned advocate for the appellant in this regard is required to be accepted. The said observations in para 15 of the impugned judgment and order are unwarranted and uncalled for as the same were not the subject matter of the petition. The observations made in para 15 are therefore required to be expunged.
10. For the foregoing reasons, the observations made in para 15 of the judgement and order dated 13.03.2007 passed by the learned Single Judge of this Court in Special Civil Application No. 8601 of 1996 are hereby expunged and para 15 of the impugned judgement is hereby quashed and set aside. However, the rest of the judgement passed by the learned Single Judge confirming the order passed by the appellate authority is upheld. Appeal is allowed to the aforesaid extent.
11. At this stage, Mr. Vakil has requested for stay of this judgement and order. The status quo to be maintained so far as the bank guarantee is concerned for a period of eight weeks from today.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) divya Page 30 of 30