Holding

R.E.P. licences/Exim Scrips are goods, not securities or actionable claims, and their transfer is subject to sales tax under the states' legislative competence.

Summary

The Supreme Court examined whether the freely transferable "replenishment licences" (R.E.P. licences) and later "Exim Scrips" issued under the Imports and Exports (Control) Act, 1947 constitute "goods" for the purpose of state sales‑tax statutes. The Court held that these licences have an independent market value, are movable property, and therefore fall within the expansive definition of goods in the Karnataka, Tamil Nadu, Kerala and Central Sales Tax Acts. They are not securities under the Securities Contracts (Regulation) Act, nor are they actionable claims, and the power to levy tax on their sale is within the competence of the states under Entry 54 of List II of the Constitution. Consequently, the sale of such licences is taxable, and the appeals and writ petitions challenging the tax were dismissed.

Issues considered

The nature of R.E.P. licences/Exim Scrips: whether they qualify as "goods" under the relevant sales‑tax statutes.
Whether the licences fall within the definition of "securities" excluded from the definition of goods.
Whether the licences constitute "actionable claims" and thus are outside the tax net.
The constitutional competence of State legislatures to levy tax on the sale of these licences (Entry 54 List II vs Entry 41 List I).
The appropriate point of taxation: at issuance of the licence or at its transfer.
The effect of the licensing authority's power to cancel the licence on its status as property.

Legislation cited

Central Sales Tax Act, 1956s. Section 2(d)
Constitution of Indias. Article 366(12), s. Article 366(29A), s. Entry 41 List I, s. Entry 54 List II, s. Entry 92-A List I
General Clauses Act, 1897
Imports and Exports (Control) Act, 1947
Karnataka Sales Tax Act, 1957s. Section 2(m), s. Section 5(1)
Kerala General Sales Tax Act
Sale of Goods Act, 1930s. Section 2(11), s. Section 2(7)
Securities Contracts (Regulation) Act, 1956s. Section 2(h)
Transfer of Property Acts. Section 3

Subjects

sales taxdefinition of goodsimport licenceR.E.P. licenceExim scripsecuritiesactionable claimconstitutional competenceEntry 54 List IIpropertytransfer of licence

Judgment

A VIKAS SALES CORPORATION AND ANR. ETC. ETC.
v.
COMMISSIONER OF COMMERCIAL TAXES
AND ANR. ETC. ETC.

MAY 1, 1996
B
(AM. AHMADI C.J., B.P. JEEVAN REDDY
AND SUHAS C. SEN JJ.J

Impon and Exports (Control) Act, 1947, Jmpons (Control) Order
C 1955-lssuance of "replenishment licences" (R.E.P. Licences}, Exim Scrips
for impo1t of goods-Licences made freely transferabl,,_Sold for profits by
holders-Sale subject to sales tax.

Kamataka Sales Tax Act, 1957-Section 5( 1), 2(m)-Sales tax imposed
on sale of R.E.P. Licences/Exim Scrips-Unclassified goods-Validiry of tax-
D Held, valid.

Definition of 'goods'-Nature and character of R.E.P. Licences--
Whether fall within definition-Held, yes.

Constitution of India-Entry 54 List JI, and Entry 92-A List I-Seventh
E Schedul,,_Scope of the two entries-lnterpretatiolt-Meaning of goods--
Whether competing entries-Held no.

Anicle 366 clause ( 12), clause (29 A)--Definition of 'goods' -Tax on
the sale or purchase of goods--Expansive meaning to be given.

F Doctrine of pith and substanc,,_Applicability of

Sale of Goods Act, 193()-Section 2 clause (7), clause (11)--Definition
of goods-Moveable property-Wide interpretation-Giving of-Actionable
claims and money discussed.

G The General Clauses Act, 1897--Definition of "moveable properly"
discussed.

The Central Sales Tax Act, 1956-Section 2(d)--Definition of goods
discussed.

H The Tamil Nadu Sales Tax Act, 195'}-Section 2(j)-Definition of
204
VIKAS SALES CORPN. v. COMMR. OF COMMERCIAL TAXES 205

goods discussed-Securities Contracts (Regulation) Act, 1956-Section A
2(h )-Definition of "securities" in the context of whether it covers R.E.P.
Licences/Scrips-Discussed.
1
Words and Phrases- 'goods" and prope1tyH nzeaning of-In the context
of the question whether R.E.P. Licences fall within the definition of goods
under the va1ious sales tax legislations. B
Under the imports (Control)Order, 1955, the Central Government is-
sued "replenishment licences" (R.E.P. Licences)/Exim Scrips for import of
essential inputs required for manufacture of the products exported. These
licences were made freely transferable without requiring any endorsement or
permission from the licensing authority. A letter from the transferor recording c
and evidencing the transfer, entitled the transferee to become the la,,ful holder
of the licence and to import goods. These licences were being sold to others for
profit and were being traded freely in the market and on stock exchanges.

The sales tax authorities of certain States proceeded to subject such D
sales to sales tax under their respective enactments. The assessees chal-
lenged the imposition of tax contending that the R.E.P. licences did not
constitute "goods" within the meaning of the relevant sales tax enactments
and therefore their sale could not be taxed. The Karnataka High Court
held that the import licence falls within the definition of "goods" under the
Sales Tax Act and the price received by the transferor is liable to sales tax. E
The Madras High Court took the same view. A number of appeals were
preferred against the decisions. Also writ petitions were directly filed by
some assessees before this Court.

The main contention before this Court was that the import licences
are not goods or property; and that they represent merely a permission to F
import goods which can be revoked at any time by the licensing authority
and were therefore, in the nature of shares and securities which have been
specifically exclude.d from the definition of "goods" in the relevant enact-
ments.

Dismissing the appeals and writ petitions, this Court
G.

HELD : 1. The definition of goods in the sales tax enactments does
exclude securities, but the R.E.P. Licences/Scrips are not securities. The
contention that the licences/scrips constitute securities within the meaning
of Clause (h) of Section 2 of the securities Contracts (Regulation) Act, H
206 SUPREME COURT REPORTS [1996) SUPP. 2 S.C.R.

A 1956 and therefore stand excluded from the definition of "goods" contained
in Tamil Nadu, Kerala and Karnataka Sales Tax Acts as well as Central
Sales Tax Act is misconceived. The definition of "goods" in these Sales Tax
enactments does exclude securities but these licences/scrips do not fall
within the definition of securities under the Securities Contracts (Regula-
tion) Act, 1956 for the relevant period which includes shares, scrips,
B
stocks, bonds, debenture stock or other marketable securities in or of any
incorporated company or other body corporate, Government securities
and rights or interests in securities and are not securities. [228-D-F]

2. The state sales tax acts had been enacted under entry 54 in List
c II of the Seventh Schedule of the Constitution which is a legislative head
and is to be construed liberally. Giving full effect to entry 54 does not in
any way curtail entry 92-A in List I covering inter-state trade or commerce.
Entry 54 in List-II of the Seventh Schedule to the Constitution of India
empowers the State Legislatures to make laws with respect to "taxes on the
D sale or purchase of goods other than newspapers subject to the provisions
of Entry 92-A of List-I". Entry 92-A of List-I speaks of "taxes on the sale
or purchase of goods other than news papers, where such sale or purchase
takes place in the course of inter-State trade or commerce". The Kar-
nataka, Tamil Nadu and Kerala Sales Tax Acts are referable to Entry 54,
while Central Sales Tax Act, 1956 is referable to Entry 92-A. These entries
E empower the State Legislatures and the Parliament respectively to levy
sales tax on sale or purchase of goods with the differnce that if it is
intra-State sale, it is the State Legislature which is competent to levy tax,
whereas in the case of inter-State sale, it is the Parliament alone that can
levy tax. Entry 54 in List-II with which this Court is immediately con-
cerned in these matters, is a legislative head. Being a legislative head, it
F
must be construed liberally and not narrowly. [212-H, 213-A-B]

3.1. The definition of "goods" in Article 366 clauses (12) and (29A)
of the Constitution, Clause (7) in Section 2 of the Sale of Goods Act, 1930,
Section 2(d) of the Central Sales Tax Act, 1956, Clause (j) of Section 2 of
G the Tamil Nadu Sales Tax Act, 1959. The Karnataka Sales Tax Act, 1957
and the Kerala General Sales Tax Act are quite wife and include all kinds
of moveable property. [222-H, 223-A]

3.2. Clause (d) of clause (29 A) of Article 366 of the Constitution
H provides that even where a right to use any goods is transferable for cash,
VJKAS SALES CORPN. v. COMMR. OF COMMERCIAL TAXES 207

deferred payment or other valuable consideration, it \\ill be a sale or A
purchase of goods for the purpose of the Constitution. Clause (7) in
Section 2 of the Sale of Goods Act, 1930 delines the expression "goods" thus
"goods" means every kind of movable property other than actionable claims
and money and includes stock and shares, growing crops, grass, and things
attached to or forming part of the land which are agreed to be severed
B
before sale or under the contract of sale." [214-E-FJ

4. The meaning of property and moveable property in various legal
dictionaries shows the expansive manner in 'vhich the expression property
is understood and includes things and rights considered as having a
n1oney value. Incorporeal things rights like trade niarks, cop)Tights, C
patents and rights in personal capable of transfer or trans1nission, such
as debts, are also included in its ambit. [220-C, A]

Black's law Dictionmy, (6th Edition, 1990); Dictionary of Commercial
Law, by A.H. Hudson (published by Butterworths, 1983) and Jowitt's
Dictionwy of English Law, (Sweet & Maxwell Limited, 1977) Volume 1, D
referred to.

5. The provisions of the Import-Export Policy' under which the R.E.P.
Licences/Exim Scrips have been granted, establish that the licences have
their omt value. They are bought _and sold as such. The original licensee or E
purchaser is not bound to import the goods permissible thereunder. He can
simply sell it to another and that another to yet another person. In other
\Vords, these licences/Exim Scrip have an inherent value of their. own and
are traded as such. They are treated and dealt with in the commercial world
as n1erchandise, as goods. A. R.E.P. Licence/Exim Scrip is neither a chose-
in-action nor an actionable claim. It is also not in the nature of a title deed. F
It has a value of its own. It is by itself a property· and it is for this reason
that it is freely bought and sold in the ~1arket. For all purposes and intents,
it is goods. Unr..:lated to the goods which can be imported on its basis, it
com1nands a value and is traded as such. [222-A.-C]

6.1. The content or R.E.P. Licenses/Exim Scrips is far more substan- G
tial and real than that of a lottery ticket. If lottery tickets are goods, there
is no reason \vhy these licences/scrips are not goods. When these licen-
ces/scrips are being bought and sold freely in the market as go<>Js and
\\'hen they have a value of their o\m unrelated to the goods which can be
imported thereunder, it is idle to contend that they are in the nature of H
208 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A actionable claims. [223-H; 224-A; F]

6.2.The fact that the licensing authority can cancel a licence has no
relevance and does not affect the inherent value of the licences. The
licences have a value of their O\Vll and the contention that the question of
tax wiII only arise at the time of transfer of actual goods imported on the
B licence and not at the time of transfer of documents \\ill have to be rejected.

H. Anraj Etc. v. Govemmcnt of Tamil Nadu Etc., [1985] Suppl. 3
S.C.R. 342, relied on.

C State of Olissa & Ors. v. Titaghur Paper Mills Company Limited & Anr.,
(1985] Suppl. SCC 280; Juint Chief Controller of lmpmts and Etpmts v.
Aminchand Mutha, [1966] I S.C.R. 262 and 5. Chandra Sekharan & Ors. v.
<iDl'l.!171111ent of Tamil Nadu & 01:1·., [1974] 2 sec 196, held inapplicable.

Slate of Madras v. Gannon Dunkerley & Co. (Madras) ltd., [1959]
D S.C.R. 379, referred to.

Frank Wmr & Co. v. London Coun(V Council, [1904] 1 K.B. 713,
referred to.

E 7. Enactments levying sales tax on sale/purchase of REP Licences are
in pith and substance referable to entry 54 - List II and not entry 41 · List I
of the Seventh Schedule to the Constitution dealing mth customs duties. TI1e
contention that R.E.P. Licences/Exim Scrips are incentives granted by the
L1nion of India as concessions from customs and that this is a matter \rhich
comes Hithin the exclusive competence of the Union Legislature under Entry
F 41 in List-I of the Seventh Schedule to the Constitution of India and that,
therefore, the State Legislature has no poll'er to levy sales tax upon their
sale/tJL•rchase is without any substance. Applying the rule of pith and sub-
stance, it 1nust be held that the enactn1ents in question are referable to Entry
54 ' List-II and not to Entry 41 in List-I. The State Legislatures are not
G seeking to make a law \vith respect to custon1 duties. They are seeking only
to levy taxes upon the sale of goods. [227-G-H; 228-A-B]

A.S. 10ishnan v. State of Madras, [1957] S.C.R. 399, referred to.

CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil Appeal
H Nos. 7771- 75 of t996 Etc. Etc.
VIKAS SALES CORPN. '· COMMR. OF COMMERCIAL TAXES [JEEVAN REDDY, J.] 209

From the Judgment and Order dated 26.6.92 of the Karnataka High A
Court in W.A. Nos. 269 to 273 of 1992.

M. Chandrashekharan, Solicitor General, Joseph Vellapally, C.S.
Vaidyanathan, K.K. Venugopal, A.K. Ganguly, R. Mohan, Sr. Advs., R.V.
Prasad, Vineet Kumar, Ms. Meenakashi Sakhardande, N.M. Sakhardande,
Vineet Kumar, K.M. Vijayan, Shiv Ram, K.V. Mohan, Ms. Neeta Agarwal, B
L.K. Pandey, S. Nandan Kumar, V.N. Raghupathy, (D.N. Mishra) Adv. for
JBD & Co., Ms. Manjula Kulkarni, Kh. Nobin Singh, M. Veerappa, Mrs.
Aruna Mathur, A Mariarputham for Arputham Aruna & Co., S.C. Birla,
Ms. Sheil Sethi, R.L. Ramani, R.J. Chandran, K.K. Mani, A.T.M. Sampath,
V. Balaji, P.N. Ramalingam, V.G. Pragasam, R. Nedumaran, T. Harish c
Kumar, T. Pramod Chepda, V. Krishnamurthy, K. J. Johan, P. Venugopal,
K. V. Vijayakumar, K. Swami, S. Muralidhar, P. Mahale and Rajeev Kumar
·Singh for the appearing parties.

The Judgment of the Court was delivered by
D
B.P. JEEVAN REDDY, J. Leave granted in Special Leave Petitions.

This batch of appeals and writ petitions raise the question - whether
the tranfer of an lmport Licence called R.E.P. Licence/Exim Scrip by the
holder thereof to another person constitutes a sale of goods within the
meaning of and for the purposes of the Sales Tax enactments of Tamil
E
Nadu, Karnataka and Kerala. If it does, it is exigible to sales tax. Otherwise
not. The Karnataka and Madras High Courts have taken the view that
R.E.P. Licences/Exim Scrips constitute goods and, therefore, on their
transfer, sales tax is leviable. Their judgment appears to be influenced
mainly by the decision of this Court in H. Anraj Etc. v. Government of Tamil F
Nadu Etc., [1985] Suppl. (3) S.C.R. 342.

2. With a view to conserve precious foreign exchange and to chan-
nelise the nation's economy on desired lines, the Central Legislature
enacted the Imports and Exports (Control) Act in 1947. Section 3 em-
powers the Central Government to make provisions by order published in G
the official gazette for prohibiting, restricting or otherwise controlling the
import into and export of the goods from the country. The expression
1
'licence' 1 is defined in clause (i) of Section 2 to mean, a licence granted,
including a customs clearance permit issued, under any control order.
Pursuant to Section 3 and Section 4(a) of the said Act, the Central H
210 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A Government issued the Imports (Control) Order, 1955. Clause (3)(i) of the
Order provides that "save as otherwise provided in this Order, no person
shall import any goods of the description specified in Schedule I except
under and in accordance with a licence of a customs clearance permit
granted by the Central Government or by any Officer specified in Schedule 1

II". The Order contains elaborate provisions governing the grant and
B
cancellation of licences and conditions subject to which the licences have
to be operated.

3. The Central Government has been issuing, from time to time, what
is called the Import and Export Policy, published in the form of a brochure.
c The Import Policy in vogue during the years concerned herein provided
for issuance of what is called "replenishment licences" (for short "R.E.P.
Licences"). The objective behind the licences was to provide to the
registered exporters the facility of importing the essential inputs required
for the manufacture of the products exported. The essential idea was to
encourage exports and for that purpose import licences called R.E.P.
D Licences wore issued equal to the prescribed percentage of the value of
exports. These licences were made freely transferable. It was provided that
the transfer such licences did not require any endorsement or permission
from the licencing authority. It was clarified that such would be "governed
by the ordinary law". It only required a letter from the transferor recording
E and evidencing the transfer. On that basis, the transferee became the due
and lawful holder of the licence and could either import the goods per-
mitted thereunder or sell it to another in turn.

4. With effect from July 3, 1991, the name of the licence was changed
to Exim Scrip (Export-Import Licence). The provisions governing the Exim
F
Scrip were broadly the same as those governing the R.E.P. Licence with
certain minor variations, which are not relevant for our purposes.

5. Several registered exporters who obtained R.E.P. licences/Exim
Scrips sold them to others for profit. In fact, these licences/Exim Scrips
G were being traded freely in the market and on stock exchanges. The sales
tax authorities of certain States proceeded to subject such sales to sales tax
under their respective enactments. The assessees immediately protested
contending that these licenccs/Exim Scrips do not constitute ;•goods'' within
the meaning of the relevant sales tax enactments and, therefore, not
H exigible to tax. The matter came up for consideration in the first instance
VIKASSALES CORPN. '· COMMR. OF COMMERCIAL TAXES (JEEVAN REDDY, J.l 211

before a learned Single Judge of the Karnataka High Court in Bharat Fritz A
Wemer Ltd. v. Commissioner of Commercial Taxes, (1992) 86 S.T.C. 170. It
was a writ petition challenging the validity of a circular issued by the
Commissioner of Commercial Taxes, Karnataka, stating that whenever an
Import Licence is transferred, it attracts tax under Section 5(1) of the
Karnataka Sales Tax Act, 1957 as unclassified goods at the rate of seven
B
percent and directing the assessing authorities and other concerned
authorities to levy tax accordingly. The learned Judge considered the
definition of "goods" in Section 2(m) of the Karnataka Act and held
following Anraj that having regard to the nature and character of the said
licences and their free transferability, they constitute goods, the sale
whereof is subject to sales tax. The learned Judge rejected the argument c
that the said licences are in the nature of actionable claims. He held: "the
import licence not merely enables a person the right of indulging in a
business of importing goods but it also excludes competition. Therefore, it
cannot be said that it is only a beneficial interest in respect of a movable
property not in possession of the person but is itself a valuable right which, D
according to the petitioners themselves, is freely transferable. The import
licence therefore must be treated as merchandise for the purposes of the
Act and clearly falls within the definition of 'goods'". The learned Judge
further held that the right under this licence is, infact, more concrete and
substantial than the right under a lottery ticket considered in Anraj. On
appeal, a Division Bench of the Karnataka High Court affirmed the judg- E
ment of the learned Single Judge. The Division Bench too relied upon the
ratio of Anraj and dismissed the appeal in the following words :

"In the instant case, the transfer of R.E.P. Licences confer upon
the transferee the immediate right to clear goods covered by the F
1icences at the Customs barrier. This is not an inchoate or incom-
plete right. It cannot be held to materialise in future because its
exercise is dependent upon the transferee buying goods covered
by the licence and bringing them to Indian shores. Nor can R.E.P.
licences be held to be actionable claims because the Customs
authorities might not clear the goods and the transferee would have G
to commence an action against them in a Court of La\V. In our
view, the transfer of an R.E.P. licence confers upon the transferee
a right which is choate and perfected and exercisable immediately
he presents to the Customs barrier goods of the nature covered
~~ H
212 SUPREME COURT REPORTS (1996) SUPP. 2 S.C.R.

A It must, therefore, follow that R.E.P. licences are goods within the
meaning of the said Act and the premium or price received by the
transferor thereof is liable to sales tax thereunder."

7. A Division Bench of the Madras High Court has also taken the

B
same view in P.S. Apparels v. Deputy Commercial Tax Officer, T. Nagar,
disposed of on April 4, 1994. Under the said judgment, a large number of
-
writ petitions were disposed of.

8. Number of appeals have been preferred by the assessees against
the decisions of Karnataka and Madras High Courts, while a number of
other assessees have approached directly by way of petitions under Article
c 32 of the Constitution of India, raising identical questions.

9. The main contention of the learned counsel for appel-
lants/petitioners, S/Sri K.K. Venugopal, Joseph Vellapally, Vaidyananthan
and K.V. "1.ohan, is that these licences/scrips are not goods; they are not
D property; they represent merely a permission to import goods, which
permission can be revoked at any time by the licencing authority; they are
really in the nature of shares securities which have been expressly excluded
from the definition of "goods" in the relevant enactments. The expression
"goods" has been understood by this Court in State of Madras v. Gannon
Dunkerley & Co. (Madras) Ltd., [1959] S.C.R. 379 in the sense it is defined
E
in the sale of Goods Act and the said definition cannot and does not
comprehend the licences of the nature concerned here.in. The meanings
1 11 11
assigned to the expression 'licence and goodsn in various law dictionaries
have been brought to our notice, besides several decisions, Indian and
English, by the learned counsel. On the basis of the said material, it is
F argued that property is a bundle of rights but every strand in that bundle
does not by itself constitute property. On the other hand, Sri A.K. Ganguly
and Sri Chandrasekharan, learned Additional Solicitor General, supported
the reasoning and conclusion arrived at by Karnataka and Madras High
Courts and commended it for our acceptance.

G 11. Entry 54 in List-II of the Seventh Schedule to the Constitution of
India empowers the Stale Legislatures to make laws with respect to "taxes
on the sale or purchase of goods other than newspapers subject to the
provisions of Entry 92- A of List-I". Entry 92-A of List-I speaks of "taxes
on the sale or purchase of goods other than newspapers, where such sale
1
H or purchase takes place in the course of inter·State trade or commcrce '.
VIKAS SALES CORPN. v. COJ\1~1R. OF COM]\lERCIAL TAXES [JEE.VAN REDDY. J.] 213

The Karnataka, Tamil Nadu and Kerala Sales Tax Acts are referrable to A
Entry 54, while Central Sales Tax Act, 1956 is referrable to Entry 92-A.
These entries empower the State Legislatures and the Parliament respec-
tively to levy sales tax on sale or ,purchase of goods with the difference that
if it is a intra-State sale, it is the State Legislature which is competent to
levy the tax, whereas in the case of inter-State sale, it is the Parliament
B
alone that can levy tax. Entry 54 in List-II, which is the one we are
immediately concerned with in these matters, is a legislative head, a head
of legislation. Being a legislative head, it must be construed liberally and
not narrowly. There appears no reason why Entry 54 should not be given
its full and due meaning and content. By giving full effect to Entry 54 in
List-II, the field and content of Entry 92-A in List 1 is in no way affected c
11 1
or curtailed. So far as the n1caning of the expression goods' is concerned,
these two entries cannot be called co1npeting entries. There is no overlap-
ping between them. The meaning given lo the said expression in Entry 54
in List-II can equally be attributed to the said e'']lression in Entry 92A in
List-I. This is a consideration which must certainly weigh with the Court D
in approaching the question at issue herein.

12. Clause (12) in Article 366 of the Constitution defines the expres-
sion 11 goods" in the following words: 1ugoods' includes all materials, com-
modities and articles". Clause (29A) in Article 366, as amended by the forty
sixth Amend1nent Act, defines the expression 11 tax on the sale or purchase E
of goods" in the following words:

(29A). ''Tax on the sale or purchase of goods" includes -

(a) a ta"( on the transfer, otherwise than in pursuance of a contract,
of property in any goods for cash, deferred payment or other F
valuable consideration;

(b) a tax on the transfer of property in goods (whether as goods
or in some other form) involved in the execution of a works
contract;
G
(c) a tax on the delivery of goods on hire-purchase or any system
of payment by instalments;

(d) a tax on the transfer of the right to use any goods for any
purpose (whether or not for a specified period) for cash, deferred H
214 SUPREME COURT REPORTS [1996] SUPP. 2S.C.R.

A payment or other valuable consideration;

( e) a tax on the supply of goods by any unincorporated association
or body of persons to a member thereof for cash, deferred payment
or other valuable consideration;

B
(l) a tax on the supply, by way of or as part of any service or in
any other manner whatsoever of goods, being food or any other
article for human consumption or any drink (whether or not
intoxicating), where such supply or service, is for cash, deferred
payment or nther valuable consideration;
c
and such transfer, delivery or supply of any goods shall be deemed
to be a sale of those goods by the person making the transfer,
delivery or supply and a purchase of those goods by the person to
\Vho111 such transfer, delivery or supply is made.''

D
The definition in clause (29A) was inserted by the forty sixth Amendment
Act \Vith a vic\V to give an expansive meaning to the \Vords "tax on the sale
or purchase of goods". Clauses (c) and (d) in this definition arc relevant
to the present controversy. Clause ( d) provides that even where a right to
use any goods is transferable for cash, deferred payment or other valuable
E consideration, it will be a sale or purchase of goods for the purpose of the
Constitution.

13. Clause (7) in Section 2 of the Sale of Goods Act, 1930 defines
the expression "goods" thus: "'goods' means eve1y kind of nzvvable prope1ty
F other than actionable claims and money; and includes stock and shares,
grov,ring crops, grass, and things attached to or forn1ing part of the land
\vhich arc agreed to be severed before sale or under the contract of sale 11
(Emphasis added). Since the said definition defines the "goods" to mean,
' every kind of movable property other than actionable claims and monci\
1

it would be appropriate to notice the definition of "property" in Clause (11).
G It reads : "'property' means the general property in goods, and not merely
a special property". It is noteworthy that both these definitions seek to
spread the net as wide as possible. While the definition of goods includes
every kind of movable properly within its ambit, the definition of property
says that it inclndcs not merely special property, but general property in
H guuds as wdl.
VIKAS SALES CORPN. "· COMMR OF COMMERCIAL TAXES [JEEVAN REDDY,J.J 215

The General Clauses Act, 1897 defines "movable property" to mean A
"property of every description except immovable property". The expression
"immovable property" is defined to "include land, benefits to arise out of
land and things attached to the earth or permanently fastened to anything
attached to the earth". The definitions in Karnataka, Tamil Nadu and
Kerala General Clauses Acts are identically worded. Jn the absence of
B
de.finition of the expression in the Sales Tax enactn1ents, the definitions in
the respective General Clauses Acts become applicable. None of these Act,
11
it may be mentioned) defines the expression property 11
•

14. The Central Sales Tax Act, 1956 defines the expression "goods"
in Clause (d) of Section 2 in the following words: C
TT'Goods' includes all niaterials, a1ticles, conimodities and all other
kinds of movable prope1ty, but does not include newspapers, ac-
tionable claims, stocks, shares and securities."

What is relevant to note in that this definition is not only inclusive in nature, D
but takes in all kinds of movable property. It excludes from its ambit certain
items, which but for such exclusion, may well have fallen within the ambit
of the said definition.

15. The Tamil Nadu Sales Tax Act, 1959 defines the expression E
"goods" in Clause G) of Section 2 in the following terms :

'"goods' means all kinds of movable property (other than
newspapers, actionable claims, stocks and shares and securities)
and includes all materials, commodities, and articles including the
goods (as goods or in some other form) involved in the execution F
of a works contract or those goods to be used in the fitting out,
improvement or repair of movable property and all growing crops,
grass or things attached to or forming part of the land which are
agreed to the severed before sale or under the contract of sale."

This definition too includes all kinds of movable property within the G
definition of goods while excluding certain specified items, viz.,
newspapers, actionable claims, stocks, shares and securities. Tbe Act does
not define the expression "movable property" which means that the defini-
tion in the General Clauses Act has to be adopted for the purposes of the
Tamil Nadu General Sales Tax Act. H
216 SUPREME COURT REPORTS (1996] SUPP. 2 S.C.R.

A 16. The definition of "goods" in the Karnataka Sales Tax Act, 1957 is
no different. It reads :

'"goods' means all kinds of movable property (other than
newspapers, actionable claims, stocks and shares and securities)
and includes live stock, all materials, commodities. and articles
B including goods, as goods or in some other form involved in the
execution of a works contract or, those goods to be used in the
fitting out improvement or repair of movable property and all
growing crops, grass or things attached to, or forming part of, the
land which are agreed to be severed before sale or under the
c contract or sale."

This Act too does not define the expression "movable property".

17. The definition of "goods" in the Kerala General Sales Tax Act
may now be set out :
D
'"goods' means all kinds of movable property (other than
newspapers, actionable claims, electricity, stocks and shares and
securities) and includes live-stock, all materials, commodities and
articles (including those to be used in the construction, fitting out,
improvement or repair of immovable property or used in the fitting
E
out improvement or repair of movable property) and all growing
crops, grass or things attached to, or forming part of the land which
are agreed to be severed before sale or under the contract of sale."

18. Inasmuch as all the aforesaid definitions of the expression "goods"
F say that it includes all kinds of movable property, it becomes necessary to
notice the meaning of the expression "movable property". Inasmuch as the
Sales Tax enactments do not define the said expression, we have to adopt
the definition in the respective State' General Clauses Act. But these
definitions in the General Clauses Act too are not very helpful. All that
G they say is that movable property means property of every kind except
immovable property. The counsel have accordingly brought to our notice
the several meanings or property and movable property in various legal
dictionaries.

19. In Black's Law Dictionary (6th Edition, 1990), the expression
H "property" has been given the following meanings :
VIKAS SALES CORPN. "· COMMR. OF COMMERCIAL TAXES (JEEVAN REDDY.J.J 217
•
"Property : That which is peculiar or proper to any person; that A
which belongs exclusively to one. In the strict legal sense, an
aggregate of rights which are guaranteed and protected by the
government. Fulton Light, Heat & Power Co. v. State, 65 Misc. Rep.
263, 121 N.Y.S. 536. The term is said to extend to every species of
valuable right and interest. More specifically, ownership; the un-
B
restricted and exclusive right to a thing; the right to dispose of a
thing in every legal way, to possess it, to use it, and to exclude
every one else from interfering with it. That dominion or indefmite
right of use or disposition which one may lawfully exercise over
particular things or subjects. The exclusive right of possessing,
enjoying, and disposing of a thing. The highest right of man can C
have to anything; being used to refer to that right which one has
to lands or tenements, goods or chattels, which no way depends
On another man's courtesy.
•
The word is also commonly used to denote everything which is
the subject of ownership, corporeal or incorporeal, tangible or D
intangible, visible or invisible, real or personal; everything that has
an exchangeable value or which goes to make up wealth or estate. ·
It extends to every species of valuable right and interest, and
includes real and personal property, easements, franchises, and
incorporeal hereditaments, and includes every invasion of one's E
property rights by actionable wrong. Labberton v. General Cas. Co.
of America, 53 Wash. 2d 180, 332 p.2d. 250, 252, 254.

Property embraces everything which is or may be the subject
of ownership, whether a legal ownership, or whether beneficial, or
a private ownership. Davis v. Davis. Tax Civ. App., 495 S.W. 2d F
607, 611. Term includes not only ownership and possession but
also the right of use and enjoyment of lawful purposes. Hoffmann
v. Kinealy, Mo., 389S.W. 2d. 745, 752.

Property, within constitutional protection, denotes group of G
rights inhering in citizen's relation to physical thing, as right to
possess, use and dispose of it. Cereghino v. State By and 17irough
State Highway Commission, 230 Or., 439 370 P.2d 694.697.

Goodwill is property, Howell v. Bowden, Tex Civ App., 368 S. W.
2d 842, 848; as is an insurance policy and rights incident thereto, H
218 SUPREME COURT REPORTS [1996) SUPP. 2 S.C.R.
•
A including a right to the proceeds, Hanis v. Hanis, 83 N.M. 441,493
P. 2d 407, 408."

The Dictionary further says "property is either : real or immovable;
or personal or movable''. It then proce~ds to give the meaning of the
expression ,'absolute property11 , 11 common property\ 11 intangible property11 ,
B ·movable property", "personal property" "private property" and "public
property" among others. The above definition shows the wide meaning·
attached to the expression. It is said to extend to every species of valuable
right and interest. It denotes every thing which is the subject of ownership,
corporeal or incorporeal, tangible or intangible, visible or invisible, real or
c personal. It includes "everything that has an extendable value". It extends
to every species of valuable right and interest.

To the same effect is the definition in the Dictionary of Commercial
Law by A.H. Hudson (published by Butterworths, 1983). It reads :
•
D "Property. In commercial law this may carry its ordinary meaning of
the subject matter of ownership, e.g. in bankruptcy referring to the
property of the debtor divisible amongst creditors. But elsewhere as
in sale of goods it may be used as a synonym for ownership and lesser
rights in goods. The Sale of Goods Act, 1979, s.2 (1) makes transfer
E of property central to sale. Section 61(1) provides that 'property'
means the general property in goods, and not merely a special
property. 'General Property' is tantamount to ownership bailees
who have possession and not ownership and others with limited
interests are said to have a 'special property' as their interest."

F 20. Jowitt's Dictionary of English Law (Sweet & Maxwell Limited,
1977) Volume-I also sets out the meaning of the expression "property" as
well as the meaning of the expression "general property" and "special
property". We may set them out :

"Property (Norm. Fr. Proprete; Lat. Proprietas; proprius, one's
G own), the highest right a man can have to anything, being that right
which one has to lands or tenements, goods or chattels which does
not depend on another's courtesy.

In its largest sense property signifies things and right con-
H sidered as having a money value, especially with reference to
VJKAS SALES CORPN. "· COMMR OF COMMERCIAL TAXES [JEEYAN REDDY, J.] 219

transfer or succession, and to their capacity of being injured. A
Property includes not only ownership, estates, and interests in
corporeal things, but also rights such as trade marks, copyrights,
patents, and rights in personam capable of transfer or transmission,
such as debts.

Property is of two kinds, real property (q.v.) and personal B
property ( q.v.).

Property in reality is acquired by entry, conveyance, or devise;
and in personality, by many ways, but most usually by gift, bequest,
or sale. Under the Law of Property Act, 1925, S. 205, 'property" C
includes any thing in action and any interest in real or personal
property. There must be a definite interest; a mere expectancy as
distinguished from a conditional interest is not a subject of proper-
ty.

'Property' also signifies a beneficial right in or to a thing. D
Sometimes the term is used as equivalent to ownership; as where
we speak of the right of property as opposed to the right of
possession ( q.v.), or where we speak of the property in the goods
of a deceased person being vested in his executor. The terms was
chiefly used in this sense with reference to chattels (Finch, Law E
176).

Property in this sense is divided into general and special or
qualified.

General property is that which every absolute owner has (Co. F
Liit. 145b.). See OWNERSHIP,

Special property has two meanings. First, it may mean that the
subject-matter is incapable of being in the absolute ownership of any
person. Thus a man may have a property in deer in a park, hares or
I"dbbits in a warren, fish in a pond, etc.; but it is only a special or G
qualified property, for if at any time they regain their natural liberty
his property instantly ceases, unless they have animus revertendi (2
BL Comm. 391). See ANIMALs FERAE NATURAE....'

This definition also shows that the expression signifies 'things and rights
considered as having a money value'. Even incorporeal rights like trade H

•. .
220 SUPREME COURT REPORTS (1996] SUPP. 2 S.C.R.

A marh, copyrights, patents and rights in personam capable of transfer or
lnillsmision, such as debts, are also included in its ambit. The meanir:g
given to "general property" and "special property" are self-explanatory and
need no emphasis at our hands. It is worth recalling that movable property
means "property of every description except immovable property" - the
definition in all the General Clauses Acts.
B
21. The above material uniformly emphasises the expansive manner
in which the expression "property" is understood. Learned counsel for the
petitioners brought to our notice the meanings of the term "property" set
out in Chapter-13, ''The Law of Property", in Salmond's Jurisprudence
C (12th Edition, 1966). In this chapter, several meanings attributed to
"property'' are discussed in extenso, to all of which it may not be necessary
to refer. Suffice to say that property is defined to include material things
and immaterial things (Jura in re prop1ia) and leases, servitudes and
securities etc. (jura in re aliena). The material things are said to comprise
D land and chattels while immaterial things include patents, copyrights and
trade marks, \Vhich along with leases, servitudes and securities are
described as incorporeal property. The expression "movable property" is
stated to include (Page 421) corporeal as well as incorporeal property.
Debts, contracts and other choses-in-action are said to be chattels, no less
than furniture or stock-in-trade. Similarly, patents, copyrights and other
E rights in rem which arc not rights over land are also included within the
meaning of movable property. We are unable to see anything in the said
l'haptcr-13, which militates against the meanings ascribed to the said '
expression in the judicial dictionaries referred to above. Indeed, they are
consistent with each other.
F
22. Learned counsel for the petitioners have brought to our notice
the several meanings of the t:A11re~sion 11 licence1' in various law dictionaries.
But, as those very dictionaries make it clear, the expression has several
ineanings - an<l one has to chuos.c thi;:; appropriate one depending upon the
context. We do not think it necessary to refer to the material cited by the
G learned counsel for the reason that the character, nature and content of
the licences in question should be ascertained with reference to the law
governing them and not with reference to the general meaning of the
expression "licence". We have already referred to the provisions of the
''Export and Import Policy" governing these licences. We may now refer to
H a few more paragraphs from the "Import and Export Policy" 1990-93,
VIKAS SALES CORPN. "· COMMR OF COMMERCIAL TAXES [JEEVAN REDDY, J.) 221

relevant to the R.E.P. Licences/Exim Scrips. A
23. Para 184(1), which deals with "Extent of Import Replenishment"
says' "the extent of replenishment permissible against export products
(other than Gem and Jewellery) enumerated in Column 2 of Appendix 17
Part I of this book shall be that set out in Column 3."
B
Para 185(1), which deals with "Items permissible for Import", says,
"REP Licences issued against export of products listed in Column 2 of
Appendix 17 Part I and as per para 184(4) of this book, will be valid for
import of those relevant items of raw materials, components, consumables
and packing materials, as are listed in Appendices 3 and 5 Part-A and c
related to the product exported."

Para 192 deals with "Flexibility in the utilisation of REP Licences".
It says that the said licences "are also valid for import of any other items
of raw materials, components, tools, consumables and packing materials
listed in Appendices 3 and 5 Part A' besides some other goods. D

Para 199 deals with "transferability of REP licences". It reads:

"199(1). The REP licence will be issued in the name of the
registered exporter only and will not be subject to "Actual User E
Conditions". "A licence holder may transfer the licence to another
person. The licence holder or such transferee may import the
goods permitted therein. ·

(2) The transfer of a REP licence will not require any endorsement
or permission from the licensing authority, i.e., it will be governed F
by the ordinary law. Accordingly, clearance of the goods covered
by a REP licence issued under this policy will be allowed by the
Customs authorities on production by the transferee of only the
document of transfer of the licence concerned in his name. When-
ever a REP licence is transferred the transferor should give a G
formal letter to the transferee, giving full particulars regarding
number, date and address of the transferee, and complete descrip-
tion of the items of import for which the licence is transferred."

As mentioned hereinbefore, the relevant feature of Exim Scrip are
identical. H
222 SUPREME COURT REPORTS [1996) SUPP. 2 S.C.R.
I

A 24. The above provisions do establish that R.E.P. licences have their
own value. They are bought and sold as such. The original licencee or the
purchaser is not bound to import the goods permissible thereunder. He
can simply sell it to another and that another to yet another pers~n. In
other words, these licences/Exim Scrips have an inherent value of their own
and .re traded as such. They are treated and dealt with in the commercial
B
world as merchandise, as goods. A REP Licence/Exim Scrip is neither a
chosl!-in-action nor an actionable claim. It is afao not in the nature of a
title deed. It has a value of its own. It is by itself a property - and it is for
this reason that it is freely bought and sold in the market. For all purposes
and 8 intents, it is goods. Unrelated to the goods which can be imported
c on its basis, it commands a value and is traded as such. This is because, it
enables its holder to import goods which he cannot do otherwise. (With
effect from March 1, 1992, of course, the very policy and system under
which these licences/scrips were being issued, has been discontinued.).

D 25. Since Karnataka and Madras High Courts have placed strong
reliance upon the decision of this Court in Anroj, it would be appropriate
to refer to the relevant facts and the ratio of the said decision. The question
in that case was whether lottery tickets are 'goods" within the meaning of
and as defined in the Tamil Nadu General Sales Tax Act and Bengal
Finance (Sales Tax) Act, 1941. The contention of the State was that they
E were goods and, therefore, attract the sales tax on their sale. According to
assessees, the lottery tickets were in the nature of actionable claims but not
goods. They questioned the legislative competence of the State Legislatures
to levy sales tax on their sale. They contended that the expression 'sale of
goods" has to be construed in the sense in which it is used in the Sale of
F Goods Act, as bas been held by this Court in Gannon Dunkerley. They
submitted that the defmition of "goods" in Sale of Goods Act excludes from
its purview actionable claims and that the essence of the lottery being
merely a chance for a prize for a price, it does not constitute goods, but a
mere actionable claim. It was argued that the lottery ticket is a mere slip
of paper or a memorandum evidencing the right of the holder thereof to
G claim or receive a prize if successful in the draw.

. 25-A. The arguments of the assessees were rejected by this Court.
The . Court referred to the definition of 'goods' and 'sale" in both the
aforesaid enactments, the definition of "goods' in Article 366(U) and the
H definition of "tax on the sale or purchase of goods' in Article 366(29A). It
VIKAS SALES CORPN. '· COMMR OF COMMERCIAL TAXES [JEEVAN REDDY, J.] 223

referred to the meaning of the expression "lottery ticket" in law dictionaries A
and decided cases; it referred to the definition of "movable property" in
the General Clauses Act, 1897 and the definition of the expression "ac-
. tionable claims" in Section 3 of the Transfer of Properly Act and observed
(Tulzapurkar, J., speaking for the Bench comprising himself and
Sabyasachi Mukherji, J.) : B
. "If incorporeal right like copyright or an intangible thing like
electric energy can be regarded as goods exigible to sales tax there
is no reason why the entitlement to a right to participate iu a draw
which is beneficial interest in movable property of incorporeal or
intangible character should not be regarded as 'goods' for the C
purpose of levying sales tax. As stated above, lottery tickets which
comprise such entitlement do constitute a stock-in-trade of every
dealer and therefore is merchandise which can be bought and sold
in the market. Lottery tickets comprising such entitlement, there-
fore, would fall within the definition of 'goods' given in the Tamil D
Nadu Act and the Bengal Act.

In the light of the aforesaid discussion my conclusions are that
lottery tickets to the extent that they comprise the entitlement to
participate in the draw are 'goods' properly so-called, squarely
falling within the definition of that expression as given in the Tamil E·
Nadu Act, 1959 and the Bengal Act, 1941, that to that extent they
are not actionable claims and that in every sale thereof a transfer
of property in the goods is involved."

With respect to the nature and cont.en! of the lottery ticket, the learned
Judge observed that it confers upon the holder thereof "the right to F
participate (in the draw) and the right to claim a prize if successful... .. In
other words, lottery tickets, not as physical articles but as slips of paper or
memoranda evidencing the right to participate in the draw must in a sense
be regarded as the dealer's merchandise and, therefore, goods, capable of
being bought or sold in the market. They can also change from hand to G
hand as goods."

We are of the opinion that the ratio of the said decision fully supports
the contention of the States herein. As rightly pointed out by the Karnataka
High Court, the content of R.E.P. Licence/Exim Scrip is far more substan-
tial and real than that of a lottery ticket. If lottery tickets are goods, there H
224 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A is no reason why these licences/scrips are not goods.
We see no substance in the argument based upon the decision in
Gannon Dunkerley. On the basis of this decision, it is contended that the
expression "'goods" and "sale of good" must be understood in the sense they
are used in the Sale of Goods Act. We need not quarrel with this proposi-
B tion. We have not only referred hereinbefore the definition of "goods" and
"property" in the Sale of Goods Act but have also pointed out that in
material particulars it is similar to the definition of "goods" in-Tamil Nadu,
Karnataka and Kcrala Sales Tax Acts. All of them uniformly say "goods"
mean "every kind of movable property" (Sale of Goods Act) and "all kinds
c of movable property" (Tamil Nadu, Karnataka and Kerala Acts). As a
matter of fact, this submission was made but not pursued by any of the
counsel for the petitioners.

26. We are also of the opinion that these licences/scrips cannot be
treated as actionable claims. "Actionable claims" is defined in Section 3 of
D the Transfer of Property Act in the following words :

"'Actionable claim' means a claim to any debt, other than a debt
secured by mortgage of immovable property or by hypothecation
or pledge of movable property, or to any beneficial interest in
E movable property not in the possession, either actual or construc-
tive, of the claimant, which the Civil Courts recognise as affording
grounds for relief, whether such debt or beneficial interest be
existent, accruing, conditional or contingent. 11

When these licences/scrips are being bought and sold freely in the
F market as goods and when then have a value of their own unrelated to the
goods which can be imported thereunder, it is idle to contend that they are
in the nature of actionable claims. Indeed, in Anraj, the main contention
of the petitioners was that a lottery ticket was in the nature of an actionable
claim. The said argument was rejected after an elaborate discussion of law
G on the subject. We agree with the said decision and on that basis hold that
the R.E.P. Licences/Exira Scrips are not in the nature of actionable claims.

Learned counsel for the petitioners submitted that the licence is
something less than property, because the licencing authority can always
cancel it, in which event, it becomes a mere scrap of paper. That feature,
H in our opinion, has no relevance on the question at issue. Cancellatipn can
VIKAS SALES CORPN. '· COMMR. OF COMMERCIAL TAXES lJEEVAN REDDY, J.J 225

be effected by the appropriate authority in accordance with the procedure A
prescribed by law and on proof of permissible grounds. We are unable to
see how the said factor detracts from the inherent value of these licences.
For that matter, many a grant is subject to such a condition. That cir-
cumstance is in no way affects the content of the grant. The further
contention that the licence/scrip merely gives a right to import certain
goods, that in case the licence is lost, one can always obtmn a copy from B
the authority and, therefo.re, the licence has no value of its own is equally
unacceptable. We have already pointed out how the commercial world
treats these licences and trades in them. They represent merchandise for
all practical purposes.
c
27. Learned counsel for petitioners have brought to our notice cer-
tain decisions, to which a brief reference would be in order :

The decision on which strong reliance is placed by Sri K.K.
Venugopal is in State of Orissa & Ors. v. Titaghur Paper Mills Company D
Limited & Anr., [1985] Suppl. S.C.C. 280. It was a case arising under the
Orissa Sales Tax Act. Under Section 3-B of the Orissa Act, the State
Government was empowered to declare from time to time by notification
any goods or class of goods to be liable to tax on turn-over of purchases.
Notifications were issued under this provision from time to time declaring
that standing trees and bamboos agreed to be severed shall be liable to tax E
on tum-over of purchases at the rate prescribed. The contention of the
assessee was that the said levy was not a tax on sale or purchase of goods
within the meaning of Entry 54 in List-II and, therefore, beyond the
legislative competence of the State Legislature. Construing the relevant
notifications and contracts, (called Bamboo contracts and Timber con-
tracts) this Court held that the Bamboo contracts were in the· nature of a F
grant of interest in immovable property and, therefore, beyond the purview
of the Act. So far as Timber ·contracts are concerned, the Court held that
inasmuch as the property in the trees, which were the subject-matter of the
contracts, passed to the forest contractor only in the felled trees, i.e., in
timber, after all the conditions of the contract has been complied with and G
after such timber was examined and checked and removed from contract
area, they too were not governed by the Notifications concerned therein.
On the basis of this decision, it was contended by Sri Venugopal that
taxable event, if at all, will arise only at the time of transfer of the actual
goods imported under and by virtue of the said licences/scrips, but not at
the time of transfer of documents. We are unable to agree. We are unable H
226 SUPREME COURT REPORTS [1996) SUPP. 2 S.C.R.

A to see how the above holding helps the petitioners herein, more particular-
ly, in view of our finding that these licences/scrips have value of their own,
are freely transferable and are openly treated in the market and on stock
exchanges.

28. Sri Vaidyananthan relied upon a decision of the Patna High
B Court in State of Bihar v. Rameshwar Jute Mills, AIR (1953) Patna 236
where the sale of loom hours was held not to be a sale of goods. It was
held by the Court that the expression "goods" in Section 2(d) of lhe Bihar
Sales Tax Act cannot be given a wider connotation which is given to that
term in the Sale of Goods Act or for that matter the wider connotation
C given to "movable property" in the General Clauses Act. It was held that
having regard to the definition in that Act, the expression "goods" refers
only to tangible goods or tangible movable property and not to any kind of
intangible right like loom hours, actionable claims, stocks, shares or
securities. We are afraid, we cannot agree with the said reasoning which
appears to be contrary to the one affirmed by this Court in Anraj.
D
29. Reliance was then placed upon the dissenting opinion of Mud-
holkar, J. in Joint Chief Controllerof Imports and Exports v. Aminchand
Mutha, (1966) 1 S.C.R. 262 to contend that transfer of a right to quota is
not sale of goods. The observations relied upon are to the effect that the
E Import Export policy issued by the Government ;if India "would not confer
a legal right upon an exporter for the division of the quota rights of a
dissolved firm." Firstly, the majority opinion (Gajendragadkar, CJ,
Wanchoo, Shah and Sikri, JJ.) is to the contrary. Secondly, quota rights
considered therein were not freely transferable like the licences/scrips
concerned herein. The last mentioned comment holds good for the other
F
decision relied upon S. Chandra Sekharan & Ors. v. Government of Tamil
Nadu & Ors., [1974] 2 S.C.C. 196. This decision deals with the trans-
ferability of a Licence/authorisation in respect of a ration shop.

30. Sri K.K. Venugopal placed strong reliance upon the decision of
G the Court of Appeal in Frank WmT & Co. v. London County Council, (1904)
1 K.B. 713. In particular, the Learned counsel relied upon the observations
of Romer L.J. at Pages 720 to 722. It was a case where a contract was
entered into between lessees of a theatre and the plaintiffs. Under this
contract, the plaintiffs were given the exclusive right for a particular period
H to supply refreshments in the theatre. For that purpose, the plaintiffs were
VIKAS SALES CORPN. '· COMMR. OF COMMERCIAL TAXES [JEEVAN REDDY, J.] 227

entitled to use the refreshment rooms, bars and wine cellars in the theatre A
and were also given the exclusive right to advertise and to let spaces for
advertisement in certain parts of the theatre. It was held by the Court of

-
Appeal that the said contract did not convey to the plaintiffs an interest in
the land which could form the subject-matter of compensation under the
Land Clauses Consolidation Act, 1845. In that connection, Romer L.J. held
B
that the contract created only a licence in favour of the plaintiffs, but did
not create any estate or interest in land in their favour." It was also held
that the right given to the plaintiffs to use refreshmerit rooms and bars etc.
was to enable the plaintiffs to supply refreshments at appropriate times and
did not involve absolute parting of possession of those parts of the theatre
by the lessees to the plaintiffs. Referring to the earlier decision in Thomas c
v. Sorrell, [1674) Vaugh. 351), the learned Judge held, "a dispensation or
licence property passeth no interest, nor alters or transfers property in
anything, but only makes an action lawful which without it had been
unlawful." It is evident, the decision dealt with the question whether the
interest created in the plaintiffs under the aforesaid contract was a lease D
or a licence. In was held that it was only the latter. With respect, we are
unable to see how the said observations are of any assistance to the
appellants/petitioners herein.

31. Sri Ganguly, learned counsel for the State of Tamil Nadu, relied
upon the dissenting opinion of S.R. Das, J. in Chiranjitlal Chowdhary v. E
Union of India, (1950] S.C.R. 869) {at pages 920 to 922) where the learned
Judge dealt with the meaning of the expression "prope1ty" in Article
19(1)(1) and Article 31 of the Constitution. Having regard to the context
in which the said question had arisen, we do not think it necessary to refer
to the observation relied upon since the material referred to by us on the p
meaning of the expression "movable pi'bperty" and the decision in Anraj is
more to the point.

32. In the written submissions filed by Sri K.V. Mohan, a new
contention, not urged at the bar, is raised, viz., that R.E.P. licences/Exim
Scrips are incentives granted by the Union of India as concessions from G
customs duty and that this a matter which comes within the exclusive
competence of the Union Legislature under Entry 41 in List-1 of Seventh
Schedule to the Constitution of India and that, therefore, the State Legis'
lature has no power to levy sales tax upon their sale/purchase. We are
unable to see any substance in this submission either. Applying the rule of H
228 SUPREME COURT REPORTS [19J6] SUPP. 2 S.C.R.

A pith and substance, it must be held that the enactments in question are
referable t0 Entry 54 in List-II and not to Entry 41 in List-I. By no stretch
oi imagination can they be related to Entry 41 in List-I. The State Legis-

B
latures are not seeking to make a law with respect to customs duties. They
are seeking only to levy tax upon the sale of goods. The test to be applied
in this behalf has been authoritatively stated by the Constitution Bench of
-
this Court in A.S. Krishnan v. State of Madras, [19571 S.C.R. 399.

33. Another contention raised in the written submissions of Sri K.V.
Mohan is that even if the said licences/scrips are treated as goods, the tax
must be levied at the first point of sale, viz., upon the authority issuing the
C licence. We cannot agree. The grant of licence by the licencing authority
to the registered exporter is not a sale. The sale is when the registered
exporter or the purchaser sells it to another person for consideration.

34. The last submission urged by Sri Vaidyanathan is that these
licences/scrips constitute securities within the meaning of Clause (h) of
D Section 2 of tb.e Securities Contracts (Regulation) Act, 1956, and therefore,
stand excluded from the definition of "goods" contained in Tamil Nadu,
Kerala and Karnataka Sales Tax Acts as well as Central Sales Tax Act. The
contention is misconceived. It is true that the definition of "goods" in the
said Sales tax enactments does exclude securities, but the question is
E whether these licences/scrips are securities. They are not. Before the
definition of the expression "securities" in Clause (h) of Section 2 of the
Securities Contracts (Regulation) Act was amended by Act 15 of 1992, the
definition reads thus :

"(h) 'securities' include -
F
(i) shares, scrips, stocks, T:>onds, debentures, debenture stock or
other marketable securities of a like nature in or of any incor-
porated company or other body corporate;

(ii) Government securities;
G
(iii) rights or interests in securities"

By the said amendment Act, sub-clause (iia) was added in the said defini-
tion, which reads :

H "(iia) such other instruments as may be declared by the Central
VIKAS SALES CORPN. '· COMMR OF COMMERCIAL TAXES (JEEVAN REDDY,J.) 229

Government to be securities; 11 A
Firstly, it is not brought to our notice that any declaration has been
made by the Central Government to the effect that these licences/scrips
are securities. Secondly, any such declaration can only be for the period
subsequent to the coming into force of the said Amendment Act, i.e.,
subsequent to January 30, 1992. All the cases before us pertain to the B
period earlier to the said date. In this view of the matter, it is not necessary
to pursue this argument further.

For the above reasons, all the appeals and writ petitions fail and are
dismissed herewith. No costs.
c
R.S. Appeals and petitions dismissed.