Order

Manufacturers of buses, such as, TATA and Ashok Leyland get orders for export of buses. One such export order is annexed as "R-3" in the paperbook. These manufacturers manufacture chassis and they thereafter place orders on the assessee for building bus-bodies (See : annexure "R-5" in the paperbook). The name of the assessee in the present case is Azad Coach Builders Pvt. Ltd. The foreign buyers place an order on the exporter, namely, TATAs for supply of "the complete bus/buses" giving specifications of the chassis and the bus-body. In some cases, the foreign buyers even indicate the source from which the exporter in India should get the "bus-body" constructed. After constructing the bus-body as per the specifications and after completing the bus in its entirety, the assessee (body-builder) delivers "the complete bus" to TATA/Ashok Leyland who then exports the same to Sri Lanka for the purposes of accounting. The exporter raises a bill for chassis on the assessee and instead of making entries in the accounts by first debiting the value of the chassis to the body-builder (assessee) and then deducting the amount of chassis from invoice of a complete bus, the exporter invoices the assessee only in respect of bus-body and not for the entire complete bus. It is not disputed that after getting the bus completed, nothing is done by the exporter to change the identity of the bus, thus entitling the assessee of the benefit under section 5(3) of the Central Sales Tax Act, 1956 (hereinafter referred to as "the said Act").

2. According to the department, the contract given to the assessee by the exporter is for the bus-body; that, "bus" and "bus-body" are different articles mentioned in entry 14 to the second schedule to the Karnataka State Sales Tax Act; that, the bus-body is a separate saleable commodity different from chassis or from the complete bus and, therefore, according to the department, the assessee is not entitled to the benefit of section 5(3) of the said Act. According to the department, in order to attract section 5(3), the assessee should have manufactured and sold the complete bus in order to constitute penultimate sale under section 5(3) of the said Act. According to the department, since the sale is only for the bus-body and not for the complete bus by the assessee to the exporter in India, the assessee is not entitled to the benefit of section 5(3) of the Act. According to the department, exemption under section 5(3) is admissible only when the commodity exported is the same as the commodity purchased and in the present case, according to the department, the commodity exported is "the complete bus" whereas the commodity purchased by the exporter is only the bus-body and, therefore, the assessee is not entitled to exemption under section 5(3) of the said Act. In this connection, reliance was placed by the department on the judgments of this court in the following cases:

1. Consolidated Coffee v. Coffee Board reported in (1980) 3 SCC 358 (para 17);

2. Sterling Foods v. State of Karnataka reported in (1986) 3 SCC 469 (para 3);

3. Vijaylakshmi Cashew Company & Others v. Dy. Commercial Tax Officer reported in (1996) 1 SCC 468 (para 4); and

4. Satnam Overseas (Export) v. State of Haryana reported in (2003) 1 SCC 561 (para 44).

3. According to the department, the word "sale" as defined under section 2(g) of the said Act makes it clear that the word "sale" indicates transfer of property in goods by one person to another for cash or deferred payment. In order to constitute "sale", it is urged, that, there has to be an agreement for sale of goods between two persons competent to contract for consideration and that the property in goods must pass as a result of such transaction. It is submitted on behalf of the department that in order to constitute "sale", the agreement and the sale must relate to the same subject matter. According to the department, "bus-body" is composite item capable of being sold in the market as goods and th