JUDGMENT K. P. BALANARAYANA MARAR, J. - Common questions arise in these tax revision cases filed by the Deputy Commissioner of Sales Tax, Board of Revenue (Taxes), Ernakulam. They relate to the assessment years 1970-71 to 1973-74. The respondent in T.R.C. Nos. 175, 176 and 179 of 1989 is the Indian Rare Earths Ltd., a public limited undertaking and the respondent in the other tax revision cases Peninsular Traders, Parumbavoor. 2. The facts leading to these tax revision cases are as follows : Peninsular Traders entered into an agreement with M/s. Indian Rare Earths Ltd. on March 23, 1970, whereby Peninsular Traders (hereinafter referred as "the assessee") was appointed as the distributor of trisodium phosphate, a product manufactured by Indian Rare Earths Ltd. The agreement was for a period of one year from April 1, 1970, renewable from year to year by mutual consent. The agreement had been renewed and was in force for the period from April 1, 1970 to March 31, 1974. On the strength of the agreement the assessee claimed that they are agents of Indian Rare Earths Ltd. and trisodium phosphate was sold by them on behalf of Indian Rare Earths Ltd. While completing the assessment of the assessee for the years 1970-71 to 1973-74, both under the Kerala General Sales Tax Act, 1963 and the Central Sales Tax Act, 1956, the assessing authority exempted the sales turnover of trisodium phosphate effected by the assessee on the ground that the assessee was only an agent and for the further reason that the sales turnover had been duly included in the sales turnover of Indian Rare Earths Ltd. during the relevant assessment years. 3. While perusing the assessment records for the years 1970-71 to 1973-74, the Deputy Commissioner, Ernakulam, noticed that the following sales turnover of trisodium phosphate had been given exemption as agency sales for those years both under the Kerala General Sales Tax Act and under the Central Sales Tax Act : 1970-71 ... Rs. 9,68,072 1971-72 ... Rs. 11,79,097 1972-73 ... Rs. 11,54,378.10 1973-74 ... Rs. 12,90,439.75 The Deputy Commissioner took action under section 35 of the Kerala General Sales Tax Act and issued notice to the assessee calling for their objections. Rs. 9,68,072 1971-72 ... Rs. 11,79,097 1972-73 ... Rs. 11,54,378.10 1973-74 ... Rs. 12,90,439.75 The Deputy Commissioner took action under section 35 of the Kerala General Sales Tax Act and issued notice to the assessee calling for their objections. Finding that the quantity of trisodium phosphate lifted by the assessee from Indian Rate Earths Ltd. during the four assessment years were outright purchases and as such the assessees are liable to pay sales tax under the kerala General Sales Tax Act and Central Sales Tax Act on those sales, the Deputy Commissioner cancelled the assessment orders. He remanded the matter to the assessing authority for fresh disposal and assessments under both the enactments. The matter was taken up in further appeal before the Sales Tax Appellate Tribunal by the assessee. The Tribunal held that there was no transfer of ownership of goods from Indian Rare Earths Ltd. to the assessee during the four assessment years mentioned above in view of the various clauses contained in the agreement entered into between the parties. The Tribunal further held that the relationship between the parties is that of an agent and principal. Ultimately the Tribunal held that there was no sale by Indian Rare Earths Ltd. to the assessee and the order of the Deputy Commissioner cannot be sustained. The Revenue has come up in revisions. 4. The right tax revision cases T.R.C. Nos. 159 to 164, 166 and 167 of 1989 are filed against the order of the Tribunal passed in T.A. Nos. 107 to 114 of 1976. 5. The other three tax revision cases T.R.C. Nos. 175, 176 and 179 of 1989 are filed against the order of the Tribunal in T.A. Nos. 382 and 431 of 1976 and 539 of 1982. These revisions relate to the company, Indian Rare Earths Ltd. for the assessment years 1971-72, 1972-73 and 1973-74. The common issue for consideration by the Tribunal was whether the relationship between Indian Rare Earths Ltd. and Peninsular Traders is that of principal and agent. The Deputy Commissioner by his order dated March 20, 1976, in exercise of his powers under section 35 of the Kerala General Tax Act, had held that the agreement does not create an agency relationship. The assessment order had been set aside by the Deputy Commissioner and the Sales Tax Officer was directed to redo the assessment in accordance with law. The assessment order had been set aside by the Deputy Commissioner and the Sales Tax Officer was directed to redo the assessment in accordance with law. On further appeal the Tribunal cancelled the order of the Deputy Commissioner and held that the lower authorities were not justified in treating the relationship between the Indian Rare Earths Ltd. and the Peninsular Traders as between two principals. The authorities were directed to treat Peninsular Traders as an agent of Indian Rare Earths Ltd. in the transactions. The appeal filed by the assessee were allowed. Though the Appellate Tribunal had rendered findings on some other aspects also, we are concerned in these tax revision cases only with respect to the question as to whether the agreement between Peninsular Traders and Indian Rare Earths Ltd. created a relationship of agent and principal. 6. The questions raised in these eleven tax revision cases are : "1. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in law in holding that regarding the transactions impugned, the assessee was acting only as an agent ? 2. Is the interpretation of the agreement dated March 23, 1970, by the Appellate Tribunal correct ? Is not the jural relation between the Indian Rare Earths Ltd. and the assessee one of vendor and purchaser only ?" 7. By the agreement, annexure A, the assessee was appointed as distributor by Indian Rare Earths Ltd. to effect sale of trisodium phosphate manufactured by that company. That the relationship between the parties was governed by the said agreement is not in dispute. The main question that falls for consideration, which is one of some difficulty, is whether the assessee was acting as agent of Indian Rare Earths Ltd. or whether they were outright purchasers of goods supplied by the company. In consideration of that question the distinction between a contract of sale and a contract for agreement for sale for sale has to be noticed and understood. The distinction has been succinctly stated by Pollock and Mulla on Indian Contract and Specific Relief Acts, 9th edition, page 709 thus : "A principal does not sell to his agent. There is a distinction between a contract of sale and contract of agency for sale. The essence of sale is the transfer of title to the goods for a price paid or promised to be paid. There is a distinction between a contract of sale and contract of agency for sale. The essence of sale is the transfer of title to the goods for a price paid or promised to be paid. The essence of agency to sell is the delivery of the goods to a person who is to sell them not as his own property but as that of the principal who remains the owner of the goods and the agent is therefore liable to account for the proceeds. In order to constitute selling agency, goods should be sold to the customer introduced by the agent not on behalf of the agent but on behalf of the principal." 8. The Supreme Court has noted the distinction in the following terms in the decision in Gordon Woodroffe & Co. (Madras) Ltd. v. Shaik M. A. Majid and Co. AIR 1967 SC 181 : "The essence of sale is the transfer of the title to the goods for price paid or to be paid. The transferee in such case becomes liable to the transferor of the goods as a debtor for the price to be paid and not as agent for the proceeds of the sale. On the other hand, the essence of agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the principal who continues to be the owner of the goods and who is therefore liable to account for the proceeds." The Supreme Court further observed that it is well established that even an agent can become a purchaser when he pays the price to the principal on his own responsibility. 9. The true legal relationship between the parties has to be ascertained from the nature of the contract and the terms and conditions contained in the agreement entered into by them. The intention of the parties has to be spelt out from such terms and surrounding circumstances. 9. The true legal relationship between the parties has to be ascertained from the nature of the contract and the terms and conditions contained in the agreement entered into by them. The intention of the parties has to be spelt out from such terms and surrounding circumstances. The Supreme Court in Bhopal Sugar Industries Ltd. v. Sales Tax Officer [1977] 40 STC 42, while considering the question whether the contract was one of agency or sale, held that the question will have to be determined having regard to the terms and recitals of the agreement, the intention of the parties as may be spelt out from the terms of the document and the surrounding circumstances and having regard to the course of dealings between the parties. The court has to look the substance rather than the form of the agreement. The Supreme Court observed that the mere fact that the word "agent" of "agency" is used or the words "buyer" and "seller" are used to described the status of the parties concerned is not sufficient to lead to the irresistible inference that the parties did in fact intend that the said status would be conferred. This view was approved by the Supreme Court in Always Agencies v. Deputy Commissioner of Agricultural Income-tax and Sales Tax [1988] 70 STC 107. 10. The distinction between a contract of sale and a contract of agency was noticed by this Court in Deputy Commissioner of Agricultural Income Tax and Sales Tax v. Always Agencies [1974] 34 STC 467. This Court observed that in the supply of goods by way of sale there is a transfer of property in the goods whereas there is none in the supply of goods to an agent. It was held : "If there be a sale the obligation of a purchaser is to pay the price of the goods. That of an agent to whom the goods are supplied by the principal is to account for the proceeds of the sale which he may effect. The property continues to be that of the principal till he sells the goods supplied to him. That of an agent to whom the goods are supplied by the principal is to account for the proceeds of the sale which he may effect. The property continues to be that of the principal till he sells the goods supplied to him. If there be a sale the seller has no interest in the goods sold once it is transferred to the purchaser who is free to deal with it as he likes." The court then observed that in the interests of business and for other reasons the seller may enter into stipulations with the purchasers in regard to the disposal of such goods and such stipulations are quite common in ordinary commerce particularly in recent times. It was held that the transactions cannot be read as one of agency merely because the freedom of the purchaser to deal with the goods as he pleases is restrained by stipulations. The crucial question according to the Division Bench will be whether title in the goods had passed to the assessee before the supply was made to the persons whose orders were booked by him. 11. In this connection it will be useful to refer to the passage contained at page 21 of Bowstead on Agency, 15th Edition, where the author deals with the distinction between agency and sale. The passage reads thus : "The distinction between agent and buyer for resale normally turns on whether the person concerned acts for himself to make such profit as he can, or is remunerated by pre-arranged commission. A supplier who himself fixes the resale price is likely to be a buyer for resale; but the fact that the resale price is fixed by the manufacturer does not necessarily make the supplier an agent, for resale prices are frequently fixed by manufacturers. Exceptionally a buyer for resale may also be paid commission, or an agent remunerated by being allowed to keep the excess over and above a stipulated price. But the making of such a profit by an agent would normally be improper." The first question is to ask whether he takes a profit on the resale which will make him a seller or a commission agent in which case he is likely to be an agent and indeed the making of any further profit would usually be improper. But the making of such a profit by an agent would normally be improper." The first question is to ask whether he takes a profit on the resale which will make him a seller or a commission agent in which case he is likely to be an agent and indeed the making of any further profit would usually be improper. A seller answers for defects in description and quality, but an agent may not do so at all because he is not a party to the contract. At page 22 the learned author further says : "Each transaction must be examined on its facts, considering the extent to which an agent's duties are appropriate. Much turns on the extent to which the principal can call for an account, for the duty to account is a typical feature of the agent's position. The ways in which the parties describe themselves are not conclusive. "There is no magic in the word "agency". It is often used in commercial matters where the real relationship is that of vendor and purchasers.'" 12. Having noticed the distinction between a contract of sale and a contract of agency for sale, the terms of the agreement can now be referred to to ascertain whether an agency is spelt out or whether there is an outright purchase. The agreement produced as annexure A describes the assessee as a distributor. They were appointed as distributors for the company's produce trisodium phosphate on the terms and conditions embodied in annexure A agreement. Clause 1 of the agreement refers to the appointment as sole distributor for trisodium phosphate for the areas covered by the States of Tamil Nadu and Kerala. The material has to be sold by the assessee on behalf of the company at the prices fixed by them from time to time. The selling price is subject to revision at the discretion of the company under advice to the distributor. For that atleast 15 days' notice has to be given. It is provided that the assessee's buyers will not be entitled to any compensation whatsoever in respect of any unsold stock held by them on the date from which the revised price becomes effective. Clause 4 specifies that full payment for the total quantity lifted by the distributor should be made at the end of the month. It is provided that the assessee's buyers will not be entitled to any compensation whatsoever in respect of any unsold stock held by them on the date from which the revised price becomes effective. Clause 4 specifies that full payment for the total quantity lifted by the distributor should be made at the end of the month. For any delay beyond 30 days from the date of delivery of the material, interest is payable at the rate of 9 per cent per annum on the amount outstanding from time to time. In case default is made for a period of two months, the company can terminate the appointment without notice and without prejudice to the right of the company to proceed against the distributor for the balance amount due to them. 13. The company will take endeavour to make regular supplies of the material, but the distributor will arrange to collect the material from the company's works at Eloor. Quantity has also been fixed. 14. In clause 6 it is stipulated that the assessee will send monthly statements showing the total quantity of goods received during the month, the quantity and value of the sales effected by the distributor on behalf of the company during that month and the closing stock remaining unsold at the end of the month. The distributor has also to send true copies of invoices showing full details. The sale proceeds will be debited to the account of the distributor. 15. Clause 7 provides that the distributor will be responsible for the realisation of the sale proceeds against all sales effected by them and will be responsible for any bad debts or delayed payments by the parties concerned. The distributor has undertaken to keep the materials in safe custody and in a good condition and at his expense. The distributor is not entitled to any credit for damaged material. The sales tax at the rate applicable on sales effect by the distributor has to be collected by the distributor and the same to be remitted to the company along with the statements to be furnished by him. 16. The distributor is not entitled to any credit for damaged material. The sales tax at the rate applicable on sales effect by the distributor has to be collected by the distributor and the same to be remitted to the company along with the statements to be furnished by him. 16. The distributor is entitled to a commission of a 6 per cent on the "ex godown, Eloor" value of the goods sold by the distributor and remitted to the company and the respective amount of commission will be credited to the distributor's account at the end of every month under advice to the distributor after realisation of sale proceeds. 17. Any enquiry received by the company from the territory mentioned in the agreement will be passed on to the distributor, but the company shall be at liberty to deal with any party directly and to execute any order received by them. Such orders will be accepted only at the usual selling rates without any discount, but commission at the rate of 6 per cent of the "ex godown, Eloor" price will be credited to the distributor's account on realisation of such sale proceeds except in the case of direct sales to Government departments and some institutions and co-operative societies. 18. The distributor has to endeavour to push the sales of trisodium phosphate in his territory and will not deal in any produce of a similar nature which is likely to affect adversely the sales of trisodium phosphate. 19. The period of the agreement is one year, i.e., from April 1, 1970 to March 31, 1971. The period can be extended by mutual consent. If not extended, it will be deemed to have been terminated as from April 1, 1971. 20. The learned Government Pleader assails the order of the Tribunal and contends that the agreement taken as a whole spells out an outright purchase by the assessee. In particular reliance is placed on clauses 4, 5, 7 and 8. On the other hand, it is the contention of the learned counsel for the respondent that there is no transfer of the goods since the assessee is only an agent entitled to get commission. In particular counsel relies on clauses 1 to 3, 6, 9 and 10. In particular reliance is placed on clauses 4, 5, 7 and 8. On the other hand, it is the contention of the learned counsel for the respondent that there is no transfer of the goods since the assessee is only an agent entitled to get commission. In particular counsel relies on clauses 1 to 3, 6, 9 and 10. The intention of the parties has to be gathered from the entirely of the document and on a reading of all the clauses contained therein. As observed by the Court of Appeal in Weiner v. Harris [1910] 1 KB 285 at 292 "one must look at what the contract is and not at what the parties say it is". What the contract is has to be decided after giving due weight to all the terms and conditions in the contract. 21. How to construe a statute has been dealt with at paragraph 872 of Halsbury's Laws of England, Volume 44, 4th edition. It is stated that a statute should be construed as a whole so as to avoid any inconsistency or repugnancy either within the section to be construed or between that section and other parts of the statue. Where there is an irreconcilable inconsistency between two provisions in the same statute, the latter prevails. But this also is doubtful. The better view is stated to be that courts must determine which is the leading provision and which is the subordinates provision and which must give way to the other. A partnership deed which contained two inconsistent provisions came up for consideration before the Supreme Court in Uduman v. Aslum (1991) 1 SCC 412 . The material question in that case was whether the partnership deed is one at will. Clauses (4) and (5) of the deed read : "(4) The business of the firm has been started on July 1, 1962 and the partnership will be brought to an end at will. The material question in that case was whether the partnership deed is one at will. Clauses (4) and (5) of the deed read : "(4) The business of the firm has been started on July 1, 1962 and the partnership will be brought to an end at will. (5) The partnership will continue till there are two partners, even in the case of one or several partners withdraw themselves or die, the partnership will continue between the two partners, will remain owners of all the capital, on condition that they should pay back to the withdrawing partners and to the heirs of the deceased partners, only the amount of their rights according to the last inventory." On a perusal of the other clauses the Supreme Court noticed that the right to continue the business by the firm as an ongoing one would be discernible so long as the objects are lawful. The legal representatives of a deceased partner are not entitled to be partners. There is an absolute embargo to induct strangers into the partnership except with the consent of all the other partners. The Supreme Court held that the partnership would continue till there are two partners as specified in clause 5 and thereafter either partner may put an end to the partnership as partnership at will. The Supreme Court observed that this construction appears to be the intention of the parties and any other construction would run counter to the express intention of the partners manifested in the contract. Viewed in the light of the principles enunciated above, we have no hesitation to find that appendix A agreement evidence an outright purchase. 22. Has there been a transfer of the title to the goods in favour of the assessee or was there only an entrustment of the goods for sale on behalf of the principal is the main question to be answered in these references. Clauses 4, 5, 7 and 8 are in favour of the conclusion reached by us. The most important and overriding clause in the agreement is clause No. 4 stipulating of payment of full value of goods by the end of the month. The liability on the assessee is to pay not only the value of the goods sold by him during the month, but the entire value of the goods lifted by him. If default is committed interest also is payable. The liability on the assessee is to pay not only the value of the goods sold by him during the month, but the entire value of the goods lifted by him. If default is committed interest also is payable. True the assessee has to submit monthly statements along with two copies of invoices showing the details of goods despatched and details of goods sold. The agreement provides for adjustment of those amounts towards the amount maintained by the principal in the name of the assessee. The assessee is entitled only to get commission. These clause are strongly relied on by learned counsel for the respondent, to whom they spelt out creation of an agency. In this connection to the decision of the Supreme Court in Hafiz Din Mohammad Haji v. State of Maharashtra [1962] 13 STC 292. An agreement in the form of a letter was addressed to the assessees in that case which contained a clause that the article should be sold at the rate fixed by the assessees. It is also stipulated that money towards goods will be remit to the assessees as sales are effected or sometimes remittance will be made in advance. Only commission was payable at the rate stipulated. The Supreme Court held that the stipulations under the agreement that the goods are to be sold at a price fixed by the supplier, the person to whom the goods are supplied is to receive a fixed remuneration for his exertion and he is liable to remit the price only after the sale is effected are clear indications that the relationship is that of principals and agent and not of vendors and purchasers. Incidentally the Supreme Court observed that the designation which the party chooses to give to the relation, especially in cases of liability to pay tax is of little consequence. It was held that the court has to ascertain the true relation between the parties without giving undue importance to the special expressions used by them having regard to the terms and the attendant circumstances in each case. It is further observed that in modern contracts the expression "agent" or "agency" has acquired an extended meaning and the use of the expression "agency" in clause 9 of the agreement considered by the Supreme Court has therefore of no special importance. It is further observed that in modern contracts the expression "agent" or "agency" has acquired an extended meaning and the use of the expression "agency" in clause 9 of the agreement considered by the Supreme Court has therefore of no special importance. Unlike the agreement considered by the Supreme Court in Hafiz Din Mohammad's case [1962] 13 STC 292, annexure A agreement stipulates for payment of the full value of the total quantity of the goods supplied by the Indian Rare Earths Ltd. The fulfilment of that condition makes the assessee the owner of the goods. In other words, the property in the goods has passed on to the assessee on the assessee paying the value of the goods. Every default in payment is visited with an interest of 10 per cent on the amount outstanding. After paying the value of the goods a person cannot be said to be an agent. He becomes an agent only if the goods are sold on behalf of the principal and not his own behalf. After becoming the owner on payment of the value, the sale is not on behalf of the principal, but on his own behalf subject to the condition embodied in the agreement regarding price. The stipulation to pay the value of the goods at the end of the month and the further stipulation to pay interest on the amount outstanding are indicative of an outright purchase. The provision to submit monthly statements showing quantity of goods received, quantity and value of the sales effected and the closing stock remaining unsold at the end of the month might have been introduced since the goods were despatched without the consignee paying for the same. The consignor or owner should know what is the total amount of the supplied and the amount due to them. This can be ascertained only from the statements contemplated in clause 6 of the agreement. From that stipulation and the further clause authorising the assessees receive commission at 6 per cent on the goods sold, it cannot be inferred there is an agency since commission can also be in the nature of profit. 23. On whom lies the responsibility to customers is a matter to be considered while ascertaining the nature of the transaction. An agreement wherein the term "agent" was used was considered by the Court of Appeal in Weiner's case [1910] 1 KB 285. 23. On whom lies the responsibility to customers is a matter to be considered while ascertaining the nature of the transaction. An agreement wherein the term "agent" was used was considered by the Court of Appeal in Weiner's case [1910] 1 KB 285. The Court of Appeal held that the substance of the transaction was that the manufacturers sold the goods to the so-called agent who in turn sold them on their own responsibility to customers. In that case the price charged by the manufacturers to the sole selling agents was the ruling market price and the sole selling agents were allowed a deduction of 10 per cent by way of commission on that price. The manufacturers had no concern at what rate the sole selling agents sold the goods to their customers. The Court of Appeal observed that the sale by the selling agents to the customers was a transaction in which the manufacturers were not interested and there was no privity of contract between the manufacturers and the ultimate purchasers. 24. In the present case also the sale is on the responsibility of the assessee who is the sole distributor. Clause 7 provides that the distributor will be responsible for the realisation of the sale proceeds against all sales effected by them and they will be responsible for any bad debts or delays in payment by the parties concerned. The sale is thus made by the assessee on their sole responsibility and there is no privity of contract between the Indian Rare Earths Ltd. and the customers who purchase the goods from the assessee. This also is an indication supporting the plea of outright purchase. 25. A question incidentally arises whether the goods remaining unsold with the assessee can be returned to Indian Rare Earths Ltd. According to us the answer should be in the negative. The agreement does not provide for the return of goods. The assessee has to pay the full value of the goods taken delivery of by them. The goods are to be sold on their own responsibility after taking them to their own stock. The question of return of the goods by the assessee does not therefore arise, not are the suppliers bound to receive back the goods from the assessee. The absence of such a provision in the agreement is a clear indication regarding the sale of goods. 26. The question of return of the goods by the assessee does not therefore arise, not are the suppliers bound to receive back the goods from the assessee. The absence of such a provision in the agreement is a clear indication regarding the sale of goods. 26. According to the Revenue the risk and loss are to be borne by the assessee. That is relevant, according to the Government Pleader, in deciding the question whether the property has passed or not. Reliance is placed on clause 8 of the agreement which stipulates that the assessee will be responsible for the safe custody of the material collected by them and shall keep the goods in a good condition. It is further stipulated that the assessee will not be entitled to any credit for damage to the material. This stipulation, according to the learned Government Pleader, indicates that the title in the goods had passed to the assessee. Even if the goods are damaged in the course of transit, there is no liability on the supplier to replace those goods whereas the assessee has to suffer the loss incurred thereby. In this connection learned counsel for the respondent draws attention to the decision in Hafiz Din Mohammad's case [1962] 13 STC 292 (SC). Clause 5 of the agreement considered by the Supreme Court in that case stipulates that the agent shall be responsible for the damages or risk at his place or in transit. The Supreme Court held that this stipulation will not alter the true nature of the rights in which the agent holds the goods. It is observed that it is open to the agent to undertake liability in respect of goods after they are delivered to him even though the property in the goods does not pass to him. But it has to be that in that case the agent was liable to remit the price as and when the sales are effected. The property has not therefore passed on to the agent in that case whereas in the present case the assessee has been found to be a purchaser. The stipulation that the supplier will not be liable for any damage to material assumes importance and is indicative of a sale. 27. Considerable reliance was placed by the learned Government Pleader on the decision of the Supreme Court in Alwaye Agencies' case [1988] 70 STC 107. The stipulation that the supplier will not be liable for any damage to material assumes importance and is indicative of a sale. 27. Considerable reliance was placed by the learned Government Pleader on the decision of the Supreme Court in Alwaye Agencies' case [1988] 70 STC 107. There are significant similarities between the agreement, annexure A, and the agreement which came up for considerable before the Supreme Court in that case. Under the agreement in that case the assessee was appointed as distributor for a product manufactured by the Travancore-Cochin Chemicals Ltd. for the area covered by the Kerala State. The agreement provided that the distributorship was on an exclusive basis giving the distributor the right of sale of the product within the area mentioned in the agreement. Supplies would be made only direct to the distributor. The company reserved with themselves the right to effect sale of the product to anybody and anywhere in India direct. The distributor shall sell the materials to the clients or consumers at the price fixed by the company plus costs incurred by the distributor who was entitled to a rebate of 3 per cent on the ex-factory selling price. The rebate was payable at the end of the month when the statement of account would be settled. The mode of payment was also provided for. Payment has to be made either in cash or by demand draft. The Supreme Court noticed that the distributor has the right of sale of the product within the stipulated area. Bulk supplies were effected in wagon-load or lorry-load direct to the consumer. The Supreme Court observed that the mere fact that the manufacturer fixes the sale price by itself cannot lead to the conclusion that the distributor is merely an agent. It was also held that the stipulation to pay rebate instead of commission is a factor which is by no means conclusive. The most important aspect noticed by the Supreme Court is "the supplies were made to the distributor against payment either immediate or deferred as provided in the agreement, and even when the goods were destined directly to the customer, it was the distributor who had to guarantee to arrange the payment". Where there was some time-lag between the sending of the goods and the payment, the goods were to be insured at the cost of the assessee. Where there was some time-lag between the sending of the goods and the payment, the goods were to be insured at the cost of the assessee. This circumstance, according to the Supreme Court, clearly showed that the distributors acted as purchasers of the goods which they in turn sold to the customers and did not merely act as agents of the said company. [See [1988] 70 STC 107 at 112 (SC) (Always Agencies v. Deputy Commissioner of Agricultural Income-tax and Sales Tax)]. 28. There are striking similarities between annexure A agreement and the agreement which came up for consideration before the Supreme Court in Alwaye Agencies' case [1988] 70 STC 107. Applying the dictum laid down by the Supreme Court in that case we have no hesitation to hold that the clauses in annexure A taken in its entirely are consistent with the assessee-company, being a seller of the goods supplied by Indian Rare Earths Ltd. and quite inconsistent with they being an agent for the sale. We are therefore of the view that the Appellate Tribunal was wrong in holding that the assessee was only an agent. In the result these tax revision cases are allowed, but in the circumstances without costs. The Appellate Tribunal shall amend the appellate accordingly. Petitions allowed.