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2011 DIGILAW 540 (GAU)

H. R. S. Agency v. Union of India

2011-06-22

UTPALENDU BIKAS SAHA

body2011
JUDGMENT U.B. Saha, J. 1. By filing this Writ petition, the petitioner has sought for quashing/setting aside the impugned order, dated 27.11.2010, issued by the Superintendent of Taxes, Charge-VI, the respondent No.4 herein, whereby the petitioner was informed in reference to his application seeking issuance of Form 'F' addressed to the Commissioner, Sale Tax and Excise Deptt. Government of Tripura, the respondent No.3 herein, that the petitioner firm is not entitled to get Form T' under the provision of CST Act, 1956 and Rules made thereunder, as the petitioner and its principal, namely, Mahabir Chemicals, Guwahati, did not obtain Certificate of registration separately under section 7(2) of CST Act, 1956 read with rule 4(2) of the CST Rules, 1957. 2. As exchange of affidavits is complete and also agreed to by the learned counsel for the parties, considering the nature of the case, the writ petition is taken up for final disposal at this stage. 3. Heard Mr. B.N. Majumder, learned counsel appearing for the petitioner as well as Mr. P. Gautam, learned counsel appearing for the State respondents. Also heard Mr. P.K. Biswas, learned Assistant SG appearing for the respondent-Union of India. 4. The pleaded case of the petitioner is that the petitioner is a sole proprietorship firm, a registered dealer under the Tripura Value Added Tax Act, 2004 and the Tripura Value Added Tax Rules, 2005 and also a registered dealer under the Central Sales Tax Act, 1956 and the Central Sales Tax Rules, 1958. Certificate of registration was issued to the petitioner on 8.2.2006 vide registration No. 16060164203(Central). 5. It is contended in the writ petition that the petitioner firm is carrying business of different products manufactured by the different companies and body corporate established outside of Tripura as Commission Agent. 6. It is also stated that the petitioner firm is also a consignment Agent of Mahabir Agency, ('Principal') whose CST No. Gau/B/994. The appointment letter as a consignment Agent issued to the petitioner firm by the said principal firm is at Annexure P/1. 7. As to the movement of goods, the petitioner dealer is receiving goods from its principal which is manufacturing goods in other State and being a consignment Agent, the petitioner firm has to obtain Form 'F' from the concerned Superintendent of Taxes for giving declaration of movement of such goods. 7. As to the movement of goods, the petitioner dealer is receiving goods from its principal which is manufacturing goods in other State and being a consignment Agent, the petitioner firm has to obtain Form 'F' from the concerned Superintendent of Taxes for giving declaration of movement of such goods. And a consignment Agent has to satisfy the concerned Superintendent of Taxes, like the respondent No.4 herein, that the movement of goods from one State to other States is not on inter-State sale but was occasioned otherwise than by way of Agency sate, i.e., stock transfer through its agent. 8. The petitioner was getting regularly the Form 'F' issued by the respondent No.4. Assessments were also done on the basis of the Form 'F' issued by the said respondent. As such, the petitioner was running his business. But in the month of July 2010, the respondent No.4 suddenly stopped the issuance of Form F to the petitioner in spite of submission of its prayers for issuance of the same. Ultimately, by the impugned letter dated 27.11.2010, the respondent No.4 informed the petitioner that as the principal of the petitioner has not obtained registration separately, the petitioner firm is not entitled to get the Form F. 9. According to the petitioner, as the principal has already been registered in its State under the CST Act and Rules, it is not necessary to get further registration of it in any other States where the goods of the principal would be sold out. 10. Against the said impugned order, dated 27.11.2010, the petitioner firm filed a revision petition before the Commissioner of Taxes, the respondent No.3 herein, the statutory revisional authority, under section 70 of the Tripura Value Added Tax Act, 2004 with a prayer for stay of the impugned order. 11. The respondent No.3 vide his order dated 14.3.2011 rejected the said prayer for staying the impugned order on the ground that the order, dated 27.11.2010, passed by the respondent No.4, has rightly refused to provide the Form 'P' to the petitioner and fixed the revision petition for further hearing on 5.4.2011. 12. When the matter is pending before the Revisional Authority, the petitioner has approached this court by way of filing this writ petition under article 226 of the Constitution of India for a direction to issue Form 'F'. 13. At this stage, Mr. 12. When the matter is pending before the Revisional Authority, the petitioner has approached this court by way of filing this writ petition under article 226 of the Constitution of India for a direction to issue Form 'F'. 13. At this stage, Mr. Nandi Majumder, learned counsel for the petitioner submits that the petitioner will not press the revision petition before the revisional authority as due to misconception of law, the petitioner filed the instant revision petition. The appropriate remedy is to file an appeal before the appellate Tribunal which is not functioning in the State of Tripura at present. 14. The respondents filed their counter-affidavit in the CM. Application No. 145 of 2011 arising out of the instant writ petition denying the contention of the petitioner. It is submitted by Mr. Gautam, learned State counsel that the state respondents will not file any further counter in the writ petition and the same may be treated as reply to the writ petition. 15. In the counter, it is contended that under the Central Sales Tax Act, 1956, two types of Certificate of Registration are provided to the dealer - one is liable to pay tax and the other is not liable to pay tax. When a dealer applies under section 7(1) of CST Act read with Rule 4(1) of the CST Rules, 1957, he will be registered under section 7(3) of CST Act, 1956 for liable to pay tax under the said Act and when such dealer applies under section 7(2) of CST Act, 1956 read with rule 4(2) of CST Rules, 1957, filling up of Form A, Column 6, he will get registration for not liable to pay tax under the said Act and who can carry business using Form 'F'. 16. Further contention of the respondents is that neither the head office of the petitioner is outside the State of Tripura nor the alleged principal of the petitioner has any branch in the State of Tripura and, thus, the principal has no right to ask the petitioner dealer for Form 'F' as the business of the principal is not covered under section under section 6A(1) of CST Act, 1956 and the principal is also not registered under the TVAT Act, 2004 and CST Act, 1956 in the State of Tripura. 17. 17. It is further contended that the principal who is outside State of Tripura is a stranger and the petitioner firm has no right to ask for Form 'F' on the strength of appointment letter, Annexure P1 to the writ petition, wherein it is specifically stated that the petitioner is to make full payment as advance by demand draft to its principal and thereafter on receipt of the said goods, it would sell the products of the principal as per their invoice rate and charge a commission @ 5% on sale amount only. 18. It is also contended that from the Appointment letter, it is clear that the petitioner and it's so called principal entered into an agreement is for selling and buying goods on money consideration. Thus, the petitioner is purchasing the goods from his so called principal to sell the same in the State of Tripura and not on transfer of stocks. Hence, the petitioner is not entitled to get Form 'F' for giving the same to his so called principal. 19. Mr. Nandi Majumder, learned counsel for the petitioner, while urging for the relief sought for would contend that the whole action of the respondents are contrary to the provisions of section6(A) of the CST Act and Rules made thereunder. He also contended that if the manufacturer is once registered under the CST Act as a dealer in a State where goods are manufactured, it is not necessary for the said manufacturer dealer to be registered again in a State where his goods are transferred for selling through his agent by way of stock transfer, thus, refusal to issue Form 'F' to the petitioner by the respondent No.4 vide his letter dated 27.11.2010 on the ground that his principal has not obtained Certificate of Registration separately under section 7(2) CST Act, 1956 read with rule 4(2) of the CST Rules, 1957 is wholly unreasonable and contrary to provisions of law. 20. He further submits that mere providing the payment of goods as an advance either by demand draft or by cash to the principal would not change the character of the petitioner as an agent, as in the said agreement, it is specifically mentioned that the petitioner has to charge on principal a commission @ 5% on the sale amount. 21. He further submits that mere providing the payment of goods as an advance either by demand draft or by cash to the principal would not change the character of the petitioner as an agent, as in the said agreement, it is specifically mentioned that the petitioner has to charge on principal a commission @ 5% on the sale amount. 21. In support of his aforesaid contention, he placed reliance on a decision of the Apex Court in the case of Commissioner of Income-tax, Bombay v. S.K.F. Ball Bearing Co. Ltd. AIR 1960 SC 1294 , wherein the Apex Court considering the fact of that case noted, inter alia, [T]hat the relation between the S.K.F. and the foreign corporations was not altered because before realizing the price from the buyers remittances were made to the foreign corporations. The price of goods sold by the S.K.F. whether before or after remittance was realized as the agent of the foreign corporations. If remittance in respect of a sale was made before the price was realized, the S.K.F. became entitled to adjust the account and to take credit for the amount paid out of the realization. What the foreign corporations received under remittance made before or after realization of the price was not the sale proceeds in respect of sales, but amounts due by the S.K.F under an obligation expressly undertaken by it under clause 23 of the agreement. The price of goods sold by the S.K.F. were in all cases received by it within the taxable territory; and the S.K.F. being the agent for sale, and for receiving the price, the income embedded in the sale proceeds must be deemed to be received by the foreign corporations also within the taxable territory. It is the receipt of income which gives rise under section4(1)(a) of the Indian Income-tax Act to liability to pay tax; and the place where the price is received is determinative of the question whether the income is received in the taxable territory. 22. According to Mr. Nandi Majumder, in view of the aforesaid decision of the Apex Court, this court should consider the advance payment made by the petitioner to its principal as advance/security for the goods as Selling Agent. 23. 22. According to Mr. Nandi Majumder, in view of the aforesaid decision of the Apex Court, this court should consider the advance payment made by the petitioner to its principal as advance/security for the goods as Selling Agent. 23. It is further contended that the respondent No.4 even on earlier occasions issued Form 'F' in favour of the petitioner while the principal was transferring its stock in the State of Tripura which would be evident from annexed documents in the writ petition. Once the respondent-authority issued the Form 'F' to the petitioner, subsequently, the said authority cannot raise the question of registration of its principal as a dealer within the State of Tripura under the provisions of CST Act, contrary to the provisions of section 6A of the Act. 24. The learned counsel again contended that section 6(A) of the Act and the rule 4(2) nowhere authorized the respondent-authority to refuse to issue Form 'F' to the petitioner when it applied for the same for transferring the stock from its principle, but, of course, the assessing authority is entitled to ask the petitioner to furnish security in terms of section 7(2)(A) and 3(3)(a) CST Act. In support of his aforesaid contention, he has placed reliance on a decision of Delhi High Court in R.H. Enterprises and Others v. Commissioner of Sales Tax and Others (1992) 85 STC 251 . 25. While resisting the prayer of the petitioner, Mr. Gautam submits that when a person purchases some goods from outside State of Tripura for selling the same in the State of Tripura, then he is not entitled to get Form 'F' and in the instant case, the petitioner is purchasing goods from its so called principal, thus, he is not entitled to get Form 'F'. 26. He further contended that the petitioner firm being not a registered one has no locus standi to seek remedy under article 226 of the Constitution. 27. He also contended that there is difference between the contract of sale and contract of agency. In contract of sale, title of goods is transferred to buyer and in contract of agency, the title of goods remains with the seller and latter has to make sale proceeds of the goods of former, i.e., the principal. 27. He also contended that there is difference between the contract of sale and contract of agency. In contract of sale, title of goods is transferred to buyer and in contract of agency, the title of goods remains with the seller and latter has to make sale proceeds of the goods of former, i.e., the principal. He further submits that in case of sale, the title of the goods is transferred to the purchaser, but in a case of stock transfer, the title remains with the principal and the transferee is to pay price received from selling the goods on the basis of his promise to his principal. 28. In the instant case, from the appointment letter, Annexure P1 to the writ petition, it is evident that the petitioner is making full payment as advance to his so called principal for the goods which would be received by him. Therefore, payment which is made to his principal can be termed as sale price. 29. His further contention is that even an agent can become purchaser when an agent purchases goods from his principal. In the instant case, the petitioner on his own responsibility made the payment advance for the goods which would be received by it subsequently from the principal in a later stage. Thus, he is not an agent but a purchaser of the goods for reselling the same in the State of Tripura. 30. In support of his aforesaid contention, the learned State counsel relied on a decision of the Apex Court in Gordon Woodroffe and Co. (Madras) Ltd. v. Shaik M.A. Majid and Co. AIR 1967 SC 181 , wherein the Apex Court while considering the agreement entered into between the appellant and the respondent, noted, inter alia, In the first place, it is important to notice that the contract in the opening portion specifically makes a mention of the fact that the defendants were buying the goods for re-sale, and in the paragraph containing the terms of the contract it is reiterated that the goods were intended for re-sale in the United Kingdom. On the fact of it, therefore, the contract is clearly not one of agency for sale but it reads as an agreement of sale. If the defendants were intended to be constituted as the agents for sale the terms of the contract would have been entirely different. On the fact of it, therefore, the contract is clearly not one of agency for sale but it reads as an agreement of sale. If the defendants were intended to be constituted as the agents for sale the terms of the contract would have been entirely different. Another important feature in this case is that there is a definite price fixed in the contract for the plaintiff's goods. According to the plaintiff the rates fixed in the contract were the ones at which the goods were sold to London purchaser and not a different rate and the defendants were agents who were obtaining for him only the price at which the goods were sold at London. 31. The Apex Court also held that: Even so, if the defendants were simply acting as agents for the sale there was no need at all to fix the price in the contract as between them and the plaintiff. It was contended for the plaintiff that according to the contracts the prices fixed are c.i.f. less 21/2 per cent and discount of 21/2 per cent was the commission for the defendant as agents. There is no use of the word 'commission' in the contracts and we see no reason to hold that 21/2 per cent should be taken as commission and not as a margin of profit. The important point is that if the contract was one of agency there was no need to mention the price at all as between the plaintiff and the defendants. 32. In para 9 of the said Report, the Apex Court further held that "it is well established that even an agent can become a purchaser when an agent pays the price to the principal on his own responsibility". 33. He also referred to a decision of the Apex Court in M/s. Sri Tirumala Venkateswara Timber and Bamboo Firm v. Commercial Tax Officer, Rajahmundry AIR 1968 SC 784 : (1968) 21 STC 312 wherein their Lordship considered the difference between contract of sale and contract of agency and noted that "as matter of law there is a distinction between a contract of sale and a contract of agency by which the agent is authorized to sell or buy on behalf of the principal and make over either the sale proceeds or the goods to the principal. The essence of a contract of sale is the transfer of title to the goods for a price paid or promised to be paid. The transferee in such a case is liable to the transferor as a debtor for the price to be paid and not as agent for the proceeds of the sale. 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 will, therefore, be liable to account for the sale proceeds. The true relationship of the parties in each case has to be gathered from the nature of the contract, its terms and conditions, and the terminology used by the parties is not decisive of the legal relationship. 34. The Apex Court further noted that whether the transaction is of sale in nature or contracts of agency is a mixed question for fact and law and must be investigated with reference to the materials which the dealer may be able to place before the appropriate authority. 35. Mr. Gautam has also relied on the decision of a Division Bench of this Court in Assam Company (India) Ltd. v. Commissioner of Taxes, Assam Guwahati and Ors., 2006 (1) GLT 454 wherein their lordship considered the provisions of section 6A of the Act and rule 12(5) of the Rules relating to Form 'F'. The Division Bench while dismissing the appeal noted that under section 6A(1) of the Central Sales Tax Act, 1956, the burden is on the dealer to prove that the movement of goods was occasioned not by reason of sale, but was occasioned by reason of transfer of such goods by him to any other place of his business or his agent or principal outside the State. It was further held that furnishing of 'F' Form is neither conclusive nor mandatory. It is for the dealer to discharge the burden of proof of the transaction by adducing proper evidence and if the transaction is not genuine transaction of transfer of goods from one place to another by reason of stock transfer, the same said be rejected by the assessing authority under section 6A(2) of the Act. 36. It is for the dealer to discharge the burden of proof of the transaction by adducing proper evidence and if the transaction is not genuine transaction of transfer of goods from one place to another by reason of stock transfer, the same said be rejected by the assessing authority under section 6A(2) of the Act. 36. Before dealing with the submission of the learned counsel for the parties, it would be proper to survey the provisions of section 6(A) and section 7 of the CST Act as well as rule 4 (2) of the CST Rules, 1957. Accordingly, the same is reproduced hereunder : 6A. Burden of proof, etc., in case of transfer of goods claimed otherwise than by way of sale. - (1) Where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and for this purpose he may furnish to the assessing authority, within the prescribed time or within such further time as that authority may, for sufficient cause, permit, a declaration, duly filled and signed by the principal officer of the other place of business, or his agent or principal, as the case may be, containing the prescribed particulars in the prescribed form obtained from the prescribed authority, along with the evidence of dispatch of such goods, (and if the dealer fails to furnish such declaration, then, the movement of such goods shall be deemed for all purposes of this Act to have been occasioned as a result of sale). (2) If the assessing authority is satisfied after making such inquiry as he may deem necessary that the particulars contained in the declaration furnished by a dealer under sub-section (1) are true he may, at the time of, or at any time before, the assessment of the tax payable by the dealer under this Act, make an order to that effect and thereupon the movement of goods to which the declaration related shall be deemed for the purpose of this Act to have been occasioned otherwise than as a result of sale. 'Explanation : In this section, 'assessing authority', in relation to a dealer, means the authority for the time being competent to assess the tax payable by the dealer under this Act. 7. Registration of dealers. - (1) Every dealer liable to pay tax under this Act shall, within such time as may be prescribed for the purpose, make an application for registration under this Act to such authority in the appropriate State as the Central Government may, by general or special order, specify, and every such application shall contain such particulars as may be prescribed. (2) Any dealer liable to pay tax under the sales tax law of the appropriate State, or where there is no such law in force in the appropriate State or any part thereof, any dealer having a place of business in that State or part, as the case may be, may, notwithstanding that he is not liable to pay tax under this Act, apply for registration under this Act to the authority referred to in sub-section (1), and every such application shall contain such particulars as may be prescribed. Explanation - For the purpose of this sub-section, a dealer shall be deemed to be liable to pay tax under the sales tax law of the appropriate State notwithstanding that under such law a sale or purchase made by him is exempt from tax or a refund or rebate of tax is admissible in respect thereof. 2. * * * 4.(2) An application for registration under sub-section (1) of section 7shall be made not later than thirty days from the date on which the dealer becomes liable to pay tax under the Act. 37. 2. * * * 4.(2) An application for registration under sub-section (1) of section 7shall be made not later than thirty days from the date on which the dealer becomes liable to pay tax under the Act. 37. In State of Tamil Nadu v. Cocoa Products and Beverages Ltd. (1998) 109 STC 634 , the Madras High Court while considering the objects of sub-section (1) of section 6A of the Central Sales Tax Act, 1956 and Form 'F' prescribed under rule 12(5) of the Central Sales Tax (Registration and Turnover) Rules, 1957, held in paras 16 and 17 of the said Report that: 16. Section 6A of the Principal Act had been inserted for the purpose of providing that the burden of proving that movement of goods from one State to another was occasioned otherwise than by way of sale shall be on the dealer making the claim. For the purpose of discharging its burden, the dealer may produce a declaration in the prescribed form from the person in the other State, to whom the goods have been sent, along with the evidence of such dispatch of goods. Therefore, what is requisite and necessary for the dealer to claim exemption in respect of the transaction of dispatch of goods from one State to another for sales on consignment basis through agent is to produce declaration in the prescribed form, that is to say, Form 'F', with the evidence of the dispatch of such goods, and nothing further. To put it otherwise, the section does not at all require any written agreement or contract evidencing appointment of agent for the purpose of effecting sales on consignment basis through agent by the principal moving the goods for such sale to another State. A perusal of form "F" clearly indicates that the agent must be a registered dealer under the CSTA, where he transacts his business. It is also made clear by the first proviso to rule 12(5) that a single declaration may cover transfer of goods, by a dealer, to any other place of his business or to his agent or principal, as the case may be, effected during a period of one calendar month. 17. It is also made clear by the first proviso to rule 12(5) that a single declaration may cover transfer of goods, by a dealer, to any other place of his business or to his agent or principal, as the case may be, effected during a period of one calendar month. 17. The information required on the body of Form 'F' as to "date from which registration is valid" and the first proviso to rule 12(5) of the Rules, we rather feel, must have to be construed in a liberal way so as to foster or develop inter-State trade or commerce. If liberally interpreted, we are of the view that it is permissible for the dealer to obtain declaration Form 'F' from appropriate tax officer, even in respect of consignments received during the period he was not registered. 38. In the aforesaid decision, the Division Bench of the Madras High Court also considered the case of Gordon Woodroffe and Co. (supra) and Sri Tirumala Venkateswara Timber and Bamboo Firm (supra) as well as Bhopal Sugar Industries Ltd. v. Sales Tax Officer (1977) 40 STC 42 (SO wherein their Lordships stated, inter alia, The concept of a sale has under one a revolutionary change, having regard to the complexities of the modern times and the expanding needs of the society, which has made a departure from the doctrine laissez faire by including a transaction within the fold of a sale even though the seller may, by virtue of an agreement, impose a number of restrictions on the buyer, namely, fixation of price, submission of accounts, selling in a particular area or territory and so on. These restrictions per se would not convert a contract of sale into one of agency, because in spite of these restrictions the transaction would still be a sale and subject to all the incidents of a sale. 39. For coming to a conclusion whether a particular dealer is a seller or an agent, the court is to see the terms of agreement/appointment letter in view of the decisions of the Apex Court in the aforementioned cases, particularly, in the case of Sri Tirumala Venkateswara Timber and Bamboo Firm (supra), wherein it is stated that whether a transaction is come within the purview of sale or contract of agency is a mixed question of fact and law and that has to be investigated. 40. 40. According to this court, such investigation can be done only from the terms of the Agreement entered into by the parties or Appointment letter issued by the principal in favour of the petitioner. 41. To examine whether the appointment letter issued in favour of the petitioner/Agreement for sale of goods is for contract of sale or contract of agency, it would be proper to go through it and accordingly, the same is reproduced hereunder: To M/s H.R.S. AGENCIES, 35, Gangail Road, Agartala, Tripura Sub : APPOINTMENT AS OUR CONSIGNMENT AGENT. Dear Sir, As per discussion held with you at our Guwahati Office, we are very glad to inform you that we have appointed you as our Consignment Agent for the period 2009-10 (i.e., 1.4.2009 to 31.3.2010) and authorized you to sale our ALL PRODUCTS (WASHING SOAP) in cartoon box packing for the same period as per terms and conditions given below : 1. You will send full payment as advance by demand draft and one blank "F" form against your order. 2. We will dispatch the goods through our preferable transport after receipt of full payment in advance only. 3. You will sale our products as per our Invoice Rate and charge us commission @ 5% on sale amount only. 4. You will send us "F" Form, copy of Sale Bill for every month in the first week of the next month. 5. Any local taxes chargeable are liable by the Sale Agent who will collect and deposit to the local authority concern. 6. All the disputes, if arisen will be settled mutually by both the parties otherwise the matter will sent to Guwahati Jurisdiction only. 7. We shall terminate this agreement any time by giving one month notice to you. This agreement is valid for the period from 1.4.2009 to 31.3.2010. Agreement accepted M/s. H.R.B. Agency Manjulika Debbarma Proprietor Signature Yours faithfully, Mahabir Chemicals Sd/- illegible Karta Signature 42. In the instant case, it appears from the appointment letter/agreement as in Annexure P1 to the writ petition that the petitioner was appointed as a consignment agent for the period of 2009-10 and also authorized to sell the products of the principal for which he is to make full payment of the goods as advance by demand draft and also provide Form 'F' against his order. Not only that, the petitioner will also get commission @ 5% on the sale amount and the petitioner is liable to pay the local tax chargeable on the goods. Therefore, according to this court, mere prescription for making full payment as an advance by the petitioner to the principal for the goods would not change the nature and character of the petitioner as an agent of the principal. Therefore, it cannot be said that the said agreement is a contract of sale, rather, according to this court; the same is an agreement for agency. 43. On perusal of the provisions of section 6A of the Act and rule 4(2) of the Rules and in view of the decision of Delhi High Court in R.H. Enterprises and Others (supra), this court has no doubt that the respondent-Revenue authority has not given power by the Legislature to refuse to issue Form 'F' to an Agent like the petitioner who is registered under the provisions of CST Act and State Act as dealer and selling goods of the principal as if the principal is selling. 44. As per prescription made in section 7 of the Act, every dealer liable to pay tax under the CST Act shall make an application for registration under the Act to such authority in the appropriate State as the Central Government may, by general or special order, specify and the dealer is also liable to pay tax under the sales tax law of the appropriate State where dealer having a place of business. 45. 45. A dealer is defined in section 2(b) wherein it is stated that 'dealer' means any person who carries on (whether regularly or otherwise) the business of buying, selling, supplying or distributing goods, directly or indirectly, for cash or for deferred payment, or for commission remuneration or other valuable consideration, and includes - (i) a local authority, a body corporate, a company, any co-operative society or other society, club, firm, Hindu undivided family or other association of persons which carries on such business; (ii) a factor, broker, commission agent, del credere agent, or any other mercantile agent, by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of buying, selling, supplying or distributing goods belonging to any principal whether disclosed or not; and (iii) an auctioneer who carries on the business of selling or auctioning goods belonging to any principal, whether disclosed or not and whether the offer of the intending purchaser is accepted by him or by the principal or a nominee of the principal. Explanation 1. -- Every person who acts as an agent, in any State, of a dealer residing outside that State and buys, sells, supplies, or distributes, goods in the State or acts on behalf of such dealer as - (i) to (ii) * * * (iii) an agent for the collection or the payment of the sale price of goods or as a guarantor for such collection or payment, and every local branch or office in a State of a firm registered outside that State or a company or other body corporate, the principal office or headquarters whereof is outside that State, shall be deemed to be a dealer for the purpose of this Act. 46. In view of the Explanation (iii) of section 2(b), an agent is a dealer in fiction of law, but it cannot be said that such dealer like the petitioner is exempted from registering himself under the provisions of sub-section (2) of section 7 of the Act. Admittedly the petitioner registered itself as a dealer and when an agent registered under sub-section (2) of section 7 of the Act, the principal need not be registered him under the aforesaid Act, where the agent is selling the goods received from principal. 47. Admittedly the petitioner registered itself as a dealer and when an agent registered under sub-section (2) of section 7 of the Act, the principal need not be registered him under the aforesaid Act, where the agent is selling the goods received from principal. 47. When a dealer makes sale of his goods by his own, not through an agent or his branch office, which is registered under CST Act, then only he has to register himself as dealer under sub-section (2) of section 7 of the Act. 48. In the instant case, being the principal of the petitioner has already been registered under CST Act in the State where he is manufacturing his goods and selling, in that case, the principal is not liable to be registered again in another State where his goods are selling by his agent who is registered under CST Act as well as under the State Act. 49. Admittedly, the petitioner is depositing the State sales tax under the TVAT Act to the appropriate authority and also registered under CST Act is a dealer and being a selling agent of the principal, it may ask for Form 'F', which it is entitled for placing the same to its principal. Therefore, denial of issuance Form 'F' to the petitioner is unfair and unreasonable. 50. This court has given anxious thought to the submission of the learned counsel of the parties and the Law Reports cited by them. 51. In Commissioner of Income-tax, Bombay (supra), the respondent SKF, an assessee under the Income-tax Act, was appointed by a Swedish company as its sole selling Agent and in clause 23 of the Agreement between the SKF and the Swedish company, it was stated that: the Agent shall pay to SKF the net sales value of the said products that are sold each month after deduction of the commission that has been agreed upon (of 20) and the import expenses that have been paid (of 21). Payment shall be made in Sweden thirty (30) days, at the latest, following the last day of the month in which the sales have been effected. 52. Payment shall be made in Sweden thirty (30) days, at the latest, following the last day of the month in which the sales have been effected. 52. In that case, the counsel of the assessee of that case has conceded that SKF was not a purchaser of goods 'received on consignment' from the foreign corporation but was their agent for sale of the goods, an answer in the affirmative was recorded on the first question. 53. In the said judgment, the Apex Court also noted that the relation between the SKF and the foreign corporations was not altered because before realizing the price from the buyers remittances were made to the foreign corporations. The price of goods sold by the SKF whether before or after remittance was realized as the agent of the foreign corporations. If remittance in respect of a sale was made before the price was realized, the SKF became entitled to adjust the account and to take credit for the amount paid out of the realization. What the foreign corporations received under remittances made before or after realization of the price was not the sale proceeds in respect of sales, but amounts due by the SKF under an obligation expressly undertaken by it under clause 23 of the agreement. In the instant case also, the relation between the petitioner and his principal is not altered only for making advance payment for goods which will be sold in due course as goods of principal. 54. The case of Assam Company (India) Ltd. (supra) as referred by Mr. Gautam is not relating to issuance of Form 'F' though in the said case, the Division Bench discussed regarding the provisions of section 6A of the Act and rule 12(5) of the Rules. The petitioner appellant of that case was registered as dealer under section 7 of the CST Act as well as under the provisions of Assam Sales Tax Act and it was carrying business dispatching tea from its different tea estates in Assam to Calcutta and Guwahati for sale. In that case, there was no question of Agent like the petitioner herein. 55. It is settled by this time that one additional or different fact may make a world of difference between the conclusions in two different cases, even when the same principles are applied in each case into similar facts. In that case, there was no question of Agent like the petitioner herein. 55. It is settled by this time that one additional or different fact may make a world of difference between the conclusions in two different cases, even when the same principles are applied in each case into similar facts. A decision is a precedent on its own facts and each case presents its own feature, it is not everything said by a judge while giving a judgment that constitutes a precedent. Precedent is the law laid down, not an observation. Therefore, the fact of that case is totally different than the case in hand. Thus, the said decision in no way helps the respondents in the present case. 56. There is no difference between the contract of sale and contract of agent as contended by Mr. Gautam referring to the TVAT Act and Rules made thereunder, but whether it is a matter of contract of sale or contract of agent that depends upon the contents of the Agreement. In the instant Agreement/Letter of appointment, (Annexure P1 to the writ petition), the principal Mahabir Chemicals asked the petitioner to make payment for the goods as he ordered in advance by demand draft. The Petitioner was also asked to charge commission @ 5% on sale amount and he was also authorized to sell their products. Like the respondent, SKF Ball Bearing Co. Ltd. in Commissioner of Income-tax, Bombay (supra), the present petitioner is also entitled to adjust the advance paid to his principal from sale proceeds of the goods on furnishing Form 'F' as furnishing of said Form 'F' is one of the condition of the Agreement, as the advance received by the principal from the petitioner is not the sale proceeds in respect of sale in the State of Tripura. Therefore, it can be said that the petitioner is not purchasing the goods from its principal Mahabir Chemicals, rather, he is acting as a commission agent for selling the product of his principal Mahabir Chemicals and advance paid to principal cannot be considered as sales proceeds. 57. More so, when the appointment letter itself says that the petitioner is a consignment Agent for selling the goods of the principal in the State of Tripura, he cannot be denied the Form 'F' only on the ground of non-registration of its principal in the State of Tripura. 57. More so, when the appointment letter itself says that the petitioner is a consignment Agent for selling the goods of the principal in the State of Tripura, he cannot be denied the Form 'F' only on the ground of non-registration of its principal in the State of Tripura. At best, the authority can ask the petitioner to furnish security in terms of section 7(2)(A) and 3(a) of the Act and if asked for security in terms of section 7(2)(A) and section 3(a) of the Act, then the petitioner is bound to deposit the said security amount to get the Form 'F' subject to in the mind of the Revenue Authority, there is any apprehension regarding misuse of Form 'F' by the petitioner which may result any prejudice to be caused to the revenue. 58. In the instant case, when the respondent-authority initially provided Form 'F' to the petitioner even when the principal of the petitioner was not registered under section 7 of the Act, then on what ground they all on a sudden stopped issuance of Form 'F' to the petitioner is not clarified in any way, as a result of which the business of the petitioner was affected. Had the petitioner misused any Form 'F' issued to him earlier, then the authority would have asked the petitioner for depositing the security, as the authority deemed it fit and proper. 59. In para 8 of the counter, it is stated by the respondent Revenue authority that petitioner was provided Form 'F' on earlier occasion upon his false declaration, but the facts remain that no penal action has been taken against the petitioner by the Revenue Authority. By the aforesaid contention, it is admitted by the Revenue Authority that the petitioner was provided Form 'F' on earlier occasion. 60. Therefore, according to this court, the impugned order, dated 27.11.2010, is bad in law and are required to be set aside. Accordingly, it is ordered. 61. The respondent-authority is directed to issue Form 'F' to the petitioner within fifteen days from the date of receipt of this order and the petitioner shall fill in the said Form 'F' in the office of the said authority. 62. It is open to the respondent-authority whether the petitioner will be asked to deposit the security as required under law or not. 63. With the aforesaid order, the writ petition is disposed of.