ORDER 1. These revision petitions filed by M/s. Mohan Meakin Limited Solan arise out of the orders dated 26.6.1992 passed by the learned Excise & Taxation Commissioner H.P. in exercise of Suo-Motu revisional powers under Section 31 of the H.R General Sales Tax Act, 1968 read with Section 9 of the Central Sales Tax Act. The cause of action relates to four different assessment years i.e. 1968-69, 1969-70, 1970-71 and 1971-72. The Assessing Authority Solan assessed the petitioner Mohan Meakin Breweries Limited for the years 1968-69 vide his orders dated 14.7.1972 by which he held the petitioner companys sales to Sikkim and Bhutan as export out of India and held the petitioner exempted from levy of the sales tax under the Central Sales Tax Act, 1956. He further held the Canteen Stores Department as a Government and treated sales to the Canteen Stores Department against D-Forms. Subsequently the learned Excise & Taxation Commissioner took the suo-motu cognizance of the assessment proceedings and revised the assessment orders aforementioned by passing the order under challenge. 2. The Assessing Authority while framing the assessment for the years 1969-70 also held the sales to Canteen Stores Department as sales to Government Department vide the orders dated 19.1.1976 and 19.5.1978 for the years 1969-70 and the Deputy Excise & Taxation Commissioner also treated the sales made through an Agent at Calcutta as export out of India to Bhutan and Sikkim in the appellate order dated 22.4.1977 for the year 1969-70 and similar observations were recorded by the Assessing Authority and the Appellate Authority in respect of the assessment years 1970-71 and 1971-72, in consequence whereof the learned Excise & Taxation Commissioner suo-motu exercised revisional powers vide the impugned orders and held sales to Sikkim and Bhutan through an intermediary at Calcutta as inter-state sales and subject to levy of tax applicable to such sales as also held the sales to Canteen Stores Department under the Ministry of Defence liable to issue C-Forms and not D-Forms for effecting purchases and consequent liability of sales tax according thereto. 3. Since common questions of law arise for determination for all the assessment years namely 1968-69, 1969-70, 1970-71 and 1971-72, we proceed to dispose of the matter by this common order. 4. 3. Since common questions of law arise for determination for all the assessment years namely 1968-69, 1969-70, 1970-71 and 1971-72, we proceed to dispose of the matter by this common order. 4. The matter has been heard through the learned Counsel appearing on behalf of the petitioner and the learned Assistant Excise & Taxation Commissioner (Legal) appearing on behalf of the respondent State. Entire records of the case were requisitioned which have been gone through minutely, the learned Counsels have also filed written statements which have also been perused. 5. Before delving into the matter it is profitable to take note of the salient facts leading the present litigation. The petitioner during all the assessment years supplied liquor to Dealers in Sikkim and Bhutan as also to the Canteen Stores Department. The supplies to Sikkim and Bhutan are purported to have been effected through their Authorised Agent Shri B.R. Dutta, stationed at Calcutta and sales made to Canteen Stores Department were treated as sales made to the Government department against D-Forms. The Assessing Authority and Appellate Authority held different views on these issues namely sales made to Bhutan & Sikkim were not inter-state sales and sales to the Canteen Stores Department were to be treated against D-Forms and not C-Forms and consequently no tax liability was fastened on the petitioner. The Excise & Taxation Commissioner vide the impugned orders holding took up the proceedings suo-motu and after scrutiny of record and on the basis of evidence before him held that the said representative Shri Dutta had an independent status and was not an employee of the Company nor he was a sales representative and therefore accordingly held the sales effected by the Company to the said Shri B.R. Dutta constituted an inter-state sale from Solan to Hawarah for the purpose of levy of tax. He further held the Canteen Stores Department as a Government undertaking engaged in commercial activity and held it to be a Dealer for the purpose of levy of tax which according to him was bound to issue C-Forms and not D-Forms for effecting purchases to run its business and discharging the liability of sales tax. These findings of the learned Excise & Taxation Commissioner have been called in question by the petitioner on the grounds to be discussed heretofore. 6. These findings of the learned Excise & Taxation Commissioner have been called in question by the petitioner on the grounds to be discussed heretofore. 6. After careful consideration of the arguments addressed and scrutiny of the material on record two issues arise for determination:— (i) whether the sales effected through Shri B.R. Dutta to Dealers in Sikkim and Bhutan were sales to the said Shri Dutta at Calcutta as inter-state sales or export out of India and the rates of tax applicable, and (ii) whether Canteen Stores Department was or was not a Government Department and whether the sales were or were not sales to the Government undertaking and applicability of Forms (C of D) ? 7. The learned Counsel for the petitioner has attacked the impugned order from various angles. He strenuously argued that the learned Excise & Taxation Commissioner has wrongly applied the ratio of various case laws pleaded before him such as M/s. Tax Tool Company Limited v. State of Tamil Nadu and M/s. Mohd. Sirajuddin v. State of Orissa. The learned Counsel for the petitioner has sought to draw the distinction between the cited case laws and their application to the present controversy by submitting that the dealer in the cited case entered into the contract with the Calcutta party and in turn the Calcutta party contracted with the foreign buyers whereas in the present case the petitioner had directly sent the goods to foreign buyers against the order of purchase through the said Shri B.R. Dutta, secondly invoices for sales were also raised in the name of Dealer at Sikkim and Bhutan. The distinction has been further drawn on the point that there was a single sale between petitioner and Dealers at Sikkim and Bhutan whereas in the citation, contract was with local exporters and foreign buyers and bill of ladens are also stated to have been sent in the name of Dealers at Sikkim and Bhutan. The learned Counsel further contended that the purported transaction of the said Agent at Calcutta do not constitute any ingredient of the "sale" who was a simple Agent and not a purchaser who got commission on the sales and not a share in the profit or loss, as the case may be, in the transaction. His role was to procure orders from the Dealers whereupon he consequently got commission. His role was to procure orders from the Dealers whereupon he consequently got commission. The said Shri Dutta did not possess any licence to deal in liquor, bears etc. transport passes etc. were not issued in his name but in the name of the foreign buyers. The learned Counsel strenuously contended that there was no sale to Shri Dutta and therefore no inter-state sales can be said to have taken place and consequently no tax is leviable as the sales made to the Dealer in Sikkim and Bhutan where exports. 8. The contention of the learned Counsel for the petitioner and the whole controversy hinges on the role of said Shri B.R. Dutta. His role and status can be appropriately understood in the light of various clauses incorporated in the agreement that he executed with the M/s. Mohan Meakin Beweries Limited. The text of the agreement reads as:— 9. This AGREEMENT made this 20th day of December one thousand nine hundred and sixty, nine BETWEEN MOHAN MEAKIN BREWERIES LIMITED, a Company incorporated under the Companies Act and having its Registered Office Solan Brewery in the State of Himachal Pradesh (hereinafter called "the Company" which expression shall where the context so follows include the assigns of the Company) of the one part and Shri Bishwa Ranjan Dutta of 30, Cotton Street, Calcutta (hereinafter called "the Agent" which expression shall where the context so allows include the permitted assigns of the Agent) of the other part WHEREBY IT IS AGREED as follows:— 1. The Agent is hereby appointed the Sole Selling Agent of the Company in Sikkim and Bhutan (hereinafter called "the territory") for the sale of the Companies Beer and Indian made Foreign Spirits (hereinafter called "the Products" for a period of one year commencing from the first day of April one thousand nine hundred and sixty nine on the terms and subject to the conditions hereinafter set out and the Agent hereby accepts such appointment. l.(A) The Agent are authorised to sell the following Special Brands of Beer in addition to the other products of the Company:— (i) Solan Special Beer; (ii) Col. Special Beer; (iii) Black Knight Beer; and (iv) Asia 72 Beer subject to the condition that instead of oversiding commission shall be entitled only to rebate equivalent to the rates of commission payable on other brands of Beer. 2. Special Beer; (iii) Black Knight Beer; and (iv) Asia 72 Beer subject to the condition that instead of oversiding commission shall be entitled only to rebate equivalent to the rates of commission payable on other brands of Beer. 2. The Agent hereby undertakes and agrees with the Company that he will all times during the continuance in force of this agreement observe and perform the terms and conditions set out in this agreement and in particulars : (a) will use his best and endeavours to promote and extend the sales of the products throughout the territory to all potential purchaser thereof and work diligently for the purpose. It is expressly agreed that the value of the Agents off take of Beer and Spirits shall not fall below the minimum of Rs. 9,999/- (exclusive of any Government duty) in the aggregate during a period of 12 months from the commencement of supplies under the agreement. It is expressly agreed that the value of the Agents off take of Beer and Spirits shall not fall below the minimum of Rs. 9,999/- (exclusive of any Government duty) in the aggregate during a period of 12 months from the commencement of supplies under the agreement. (b) will in all matters act loyally and faithfully to the Company and obey its orders and instructions and in absence of any such orders or instructions in relation to any particular matter will act in such manner as he reasonable considers to be most beneficial to the Companys interest; (c) will not engage to be interested either directly or indirectly as principle Agent employee in selling goods of any description or kind similar to the products of the Company or designed to perform the like functions of those of the Company whether the previous consent in writing of the Company; (d) will sell the products at any price which the Agent in his discretion may fix from time to time; (e) will refer to the Company all enquiries for the products from addresses out side the territory and from addresses within the territory for re-sale outside the territory and the Agent shall not be entitled to any remuneration in respect of any sales resulting from any such enquiries; (f) will promptly bring to the notice of the Company any information received by him which is likely to be of use or benefit to the Company in marketing the products; (g) will keep full and proper books of account and records showing clearly all enquiries transactions and proceedings relating to the agency and in particular all transactions undertaken by or the products such agency and remaining at all times the property of the Company; (h) will allow the authorised officers of the Company at all reasonable times to have access to the Agents premises and shops within territory for the purpose of inspecting the said books and records and for the purpose of taking stock of the products of those premises and shops; (i) will not incur any liability on behalf of the Company or in any way pledge or purport to pledge the Companys credit; (j) will not allow any credit to customers without prior sanction being received in writing from the Company. If the Agent chooses to give credit facilities without the express consent of the Company, he will be doing so at his risk and responsibility. 3. For supplies effected to the Agent or the licence direct on account of the Agent, the Company will not only bear goods train freight on the products up to Hawarah and shall send the documents through the State Bank of India, Calcutta, or direct, for collection, or, alternatively, the Company may collect the value of the products from the Agent through Calcutta Depot. 4. The Company reserves to itself the right notwithstanding anything to the contrary herein contained: (a) to export the products to the territory for re-export in bond outside the territory and to sell and supply the products in the territory in respect of which the Company will subsequently inform the Agent it being understood that nothing contained in these presents shall apply to any supply of the products made or to be made by the Company to the forces through Canteen Stores Department or similar agency under any contract or contracts entered into by the Company; (b) to vary the territory of the products either by the withdrawal therefrom of a class or classes of goods in the event of the Company cessing to manufacture that class or those classes of goods or by the addition thereto of a further class or further classes of goods of the Company and vary other terms of appointment including the changes in the basis of the Commission etc. by mutual consent of the parties; (c) in the event of its business or any part thereof being transferred to any other Company to assign its rights and obligation under this agreement to that other Company after giving three months notice of such assignments in writing to the Agent. 5. The Agent will make his own arrangements to procure excise licence in the territory. 6. The Agent will make his own arrangement at his cost for offices and distribution depots and other accommodation at places as may be required by him. 7. The Agent shall be responsible for the stock of the products of the Company kept in the premises of the agencies entrusted to him and such stocks shall carry a full cover by way of insurance at the cost of the Agent. 8. 7. The Agent shall be responsible for the stock of the products of the Company kept in the premises of the agencies entrusted to him and such stocks shall carry a full cover by way of insurance at the cost of the Agent. 8. On receipt of indents from the Agent or his representatives for supplies to distribution depots or direct to customers within the territory the Company may at its option issue supplies from any of its distilleries or breweries PROVIDED such indents are accompanied in each case by a No-objection Certificate from the Indian Trade Agent or other appropriate authority in Sikkim or Bhutan. Further the Agent will send in respect of each consignment of the products a certificate from the above mentioned officer or authority, testifying to the arrival of goods in the territory. Should the Agent fail to send such certificates within a reasonable period of time of the arrival of the products in the territory, the Company will held the Agent responsible for the payment of any excise duty on the products to the State Government concerned from whose jurisdiction the products are despatched on account of the Agent or his representatives. 9. Agent shall be paid by the Company a distributors commission in respect of all sales made by the Agent whether through the depot or otherwise, at the rate of six and a quarter percent on the in-bond prices in force at the Companys Calcutta Depot at the time such supplies are effected. They shall be entitled to commission on Spencer Brands and rebate on other Brands like B.K. Whisky and Golden Oak Whisky etc. Such commission will be calculated and credited to the Distribution Agents account every month PROVIDED that no commission whatsoever shall be allowed on supplies made by the Company direct to Canteen Contractors or Units on the basis of indents received from the Canteen Stores Department or Armed Forces or on orders not routed through the Agent. 10. The Agent shall be responsible for all breakages, shortages and other losses once the goods included in the products have been despatched from the Railway Station of despatch but the Company will make an allowance on the invoice value of such goods (excluding Excise Duty and other charges as mentioned hereinbefore) at the rate of one percent to cover such breakages, shortages and losses. In case of supplies to direct customers within the territory the said allowances shall be given directly to those customers and shall be provided in the concerned invoices. 11. The Agent shall be responsible for all expenses such as establishment, rent, electricity, water charges, telephone, telegrams and postals, conveyance and travelling expenses, licence renewal fees, professional taxes and other expenses unless otherwise specifically provided for in this Agreement. The Agents shall also be responsible for all expenses incurred in connection with convassing and selling the products in the territory. The expenses of advertisement of the products will however be borne by the Company. 12. The Agent shall be responsible to the Company for the recovery and collection of the sale proceeds of all sales effected through his agency and shall be entirely responsible for any bad debts which may arise by reason of his failure to recover and collect such proceeds or other sums due in respect of such sales. 13. The Company will send to the Agent on the last day of each month a statement showing the value of all goods included in the products at their current selling rates to merchants, sold by the Agent together with all charges recoverable in accordance with their current terms of business. 14. The Agent shall keep with the Company a sum of Rs. 5,000/ - as security deposited and the same deposit shall carry an interest at the rate of six percent per annum. 15. The Agent hereby indemnifies and shall keep the Company indemnified against all losses damages costs charges and expenses in regard to the duties liabilities and responsibilities of the Agent hereunder. 16. The Agent is held firmly bound to the Company in the sum of Rs. 5,000/- as security for the due and faithful discharge of the duties obligations responsibilities and indemnities hereunder and as security to the Company its successors and assigns for the faithful discharge by the Agent of the duties liabilities responsibilities and indemnities as aforesaid the Agent hereby assigns to the Company the aforesaid sum of Rs. 5,000/- as security for the due and faithful discharge of the duties obligations responsibilities and indemnities hereunder and as security to the Company its successors and assigns for the faithful discharge by the Agent of the duties liabilities responsibilities and indemnities as aforesaid the Agent hereby assigns to the Company the aforesaid sum of Rs. 5,000/- by him deposited with the Company TO HAVE AND TO HOLD the same UNTO and to the use of the Company subject to the following conditions: (i) If and when all accounts between the Company and the Agent have been finally closed and settled and all amounts, if any due by the Agent under this Agreement or otherwise shall have been fully paid and discharged, the Company shall and will at the request and cost of the Agent re-assign and/or repay the aforesaid sum of Rs. 5,000/- with interest thereon at the rate of two per cent per annum. (ii) If default shall be made by the Agent or any of his representatives in the due performance of his aforesaid duties or the due fulfilment of his aforesaid obligations or in settling any accounts or in making good or reimbursing to the Company any damages losses costs charges or expenses hereinbefore mentioned or any part thereof, then and in any case and immediately thereupon or at any time thereafter as occasion shall require, it shall be lawful for the Company to adjust any such accounts and to make good any such damages losses costs charges or expenses as aforesaid out of the said sum of Rs. 5,000/-. (iii) if any such accounts damages losses costs charges and expenses shall not have been fully adjusted reimbursed or made good to the Company by the Agent out of the aforesaid sum of Rs. 5,000/- the Agent shall be liable to the Company for the payment of any unpaid balance : PROVIDED that the Agent shall always be at liberty to deposit any further sum of money with the Company to increase the aforesaid security of Rs. 5,000/- and such further sum shall be subject to the same terms and conditions as herein provided. 18. All previous Agreements and arrangements, if any, made between the Company and the Agent are hereby cancelled but without prejudice to any rights which have already accrued thereunder to either party. 19. 5,000/- and such further sum shall be subject to the same terms and conditions as herein provided. 18. All previous Agreements and arrangements, if any, made between the Company and the Agent are hereby cancelled but without prejudice to any rights which have already accrued thereunder to either party. 19. (a) Either party may terminate this agreement at any time by giving to the other party three months notice in writing sent by registered post or recorded delivery service to the registered office of the Company or the Agent as either party. (b) Without prejudice to any other remedies the Company may have against the Agent, the Company shall have the right at any time by giving notice in writing to the Agent to terminate the Agreement forthwith in any of the following events:— (i) if the Agent commits a breach of any of the terms or conditions of this Agreement. (ii) if the Agent enters into liquidation whether compolsorily or voluntarily or compound with the creditors or takes or suffers any similar action in consequence of debt. (iii) if from any cause the Agent is prevented from performing his duties and obligations hereunder for a period of two consecutive months or for a total period of three months in any one period of 12 calendar months. (iv) if the Agent purports to assign the burden or benefits or charge the benefits of this Agreement without the written consent of the Company. 20. Save as hereinbefore otherwise provided any notice required to be given hereunder shall be sufficiently given to the Agent if forwarded by registered post recorded delivery service or telegraph to the last known postal address of the Agent in Calcutta and shall be sufficiently given to the Company if similarly forwarded to its registered office. Every notice shall be deemed to have been received and given at the time when in the ordinary course of transmission it should have been delivered at the Address to which it was sent. 21.Any dispute difference or question which may arise at any time hereafter between the Company and the Agent touching the true construction of this Agreement or the rights and liabilities of the parties hereto shall be settled at the Companys registered office at Solan Brewery and any suit concerning such disputes shall brought in the Courts in Solan. 22. 21.Any dispute difference or question which may arise at any time hereafter between the Company and the Agent touching the true construction of this Agreement or the rights and liabilities of the parties hereto shall be settled at the Companys registered office at Solan Brewery and any suit concerning such disputes shall brought in the Courts in Solan. 22. This Agreement shall be subject to the condition that the appointment of the Agent shall cease to be valid if it is not approved by the Company in its first generally meeting held after the date on the appointment has been made and if the company in general meeting as aforesaid disapproves the appointment, it shall cease to be valid with effect from the date of that general meeting. IN WITNESS whereof the parties hereto have duly executed these presents the day and year first above written. 10. Perusal of the various clauses of the Agreement aforementioned give a clear impression that the said Shri Dutta has an independent status and was not the sales representative of the petitioner Company. The presence of such clauses enabling him to make the arrangements for the independent office, distribution Depots, placing his orders with the Company directly bearing the freights by goods train upto Hawarah by the Company, his responsibility for breakages, shortages and other losses after the despatch of goods from Railway Station and losses in transit and his exclusive right to fix the price of Companys products and debiting of entire amount to Shri Dutta instead of foreign buyers are clear indication of Shri Dutta possessing an independent entity. The provision for full cover of insurance of the Companys stock at his premises at the cost of the Agent is an usual clause. The fact that the Company debited the same amount to Shri Dutta in the ledger which was due from the foreign buyers and no accounts of foreign buyers were made invoices of the goods were issued in the name of Shri Dutta, these provisions run contrary to the pleas taken by the Counsel for the petitioner. These acts and deeds of the petitioner with their so called distributing Agent are indicative enough to clothe the said transactions as inter state sale made to said Shri Dutta at Calcutta. The petitioners were not under any contractual obligation with the foreign buyers. These acts and deeds of the petitioner with their so called distributing Agent are indicative enough to clothe the said transactions as inter state sale made to said Shri Dutta at Calcutta. The petitioners were not under any contractual obligation with the foreign buyers. In view of the facts and circumstances as also the acts and deeds of the petitioners and the said Shri Dutta the sales are clearly inter-state sales and are liable to be taxed as such under the provisions of the Central Sales Tax Act, therefore, this plea of the petitioner lacks merit and is accordingly rejected. 11. Adverting to the second controversy with regard to the sales made to Canteen Stores Department, undoubtedly the Canteen Stores Department is a Government organisation and is engaged in doing commercial activities. Whether such an organisation is Dealer or not for the purpose of levy of sales tax, it is relevant to refer to the word "Dealer" as defined under the Central Sales Tax Act, which reads as: "any person who carries on the business of buying or selling goods and includes a Government which carries on such business." 12. The business has further been defined under the Central Sales Tax Act, 1976 as : "any trade commerce or manufacture, or any adventure or concern in the nature of the trade, commerce or manufacture, whether or not such trade, commerce, manufacture, adventure, or concern is carried on with a motive to make gain or profit and whether or not any gain or profit accrues from such trade commerce, manufacture, adventure or concern." 13. Since the Canteen Stores Department are engaged in the business of buying and selling goods, even though a Government Department is a Dealer in view of the definition and for the purpose of levy of sales tax under the Central Sales Tax Act and were accordingly liable to submit C-Forms. Therefore this plea is also bereft of any merit and is accordingly rejected. Consequently the revision petition has no force and is accordingly rejected. Orders be communicated to the parties and the file of this Court be consigned to record room after due completion. Revision dismissed.