{"id":134718,"date":"1962-08-28T00:00:00","date_gmt":"1962-08-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-cement-marketing-co-of-vs-the-state-of-mysore-and-another-on-28-august-1962"},"modified":"2018-01-05T17:07:27","modified_gmt":"2018-01-05T11:37:27","slug":"the-cement-marketing-co-of-vs-the-state-of-mysore-and-another-on-28-august-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-cement-marketing-co-of-vs-the-state-of-mysore-and-another-on-28-august-1962","title":{"rendered":"The Cement Marketing Co., Of … vs The State Of Mysore And Another on 28 August, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Cement Marketing Co., Of … vs The State Of Mysore And Another on 28 August, 1962<\/div>\n
Equivalent citations: 1963 AIR 980, \t\t 1963 SCR Supl. (3) 777<\/div>\n
Author: K L.<\/div>\n
Bench: Das, S.K., Kapur, J.L., Sarkar, A.K., Hidayatullah, M., Dayal, Raghubar<\/div>\n
           PETITIONER:\nTHE CEMENT MARKETING CO., OF INDIALTD. AND ANOTHER\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF MYSORE AND ANOTHER\n\nDATE OF JUDGMENT:\n28\/08\/1962\n\nBENCH:\nKAPUR, J.L.\nBENCH:\nKAPUR, J.L.\nDAS, S.K.\nSARKAR, A.K.\nHIDAYATULLAH, M.\nDAYAL, RAGHUBAR\n\nCITATION:\n 1963 AIR  980\t\t  1963 SCR  Supl. (3) 777\n CITATOR INFO :\n R\t    1966 SC 563\t (21)\n R\t    1966 SC1216\t (9,10)\n R\t    1967 SC 585\t (7)\n R\t    1971 SC 477\t (9)\n R\t    1979 SC1160\t (15)\n RF\t    1992 SC1952\t (8)\n\n\nACT:\nSales  Tax-Sale of goods-Transactions involving movement  of\ngoods across the border from one, State to another Liability\nto  tax-Mysore\tSales  Tax Act, 1948 (Mysore  46  of  1948)-\nConstitution of India, Art.286(2).\n\n\n\nHEADNOTE:\nThe second appellant was a manufacturer of cement and at the\nmaterial  time\tit had over a dozen factories  in  different\nparts  of  India none of which was in the State\t of  Mysore.\nThe  first appellant was its sales manager and had its\thead\noffice\tin Bombay with a branch office at Bangalore  in\t the\nState of Mysore' Cement was a controlled article and  every-\none wishing to buy cement. had to get an authorisation\tfrom\nthe  appropriate Government authorities in a  standard\tform\nwhich  authorised  the\tfirst appellant to  sell  cement  in\nquantities  mentioned  therein\tand the\t cement\t had  to  be\nsupplied from the factory therein mentioned.  The  purchaser\nhad to place an order with the first appellant. stating\t the\nrequirement,  where the goods were to be sent and  how\tthey\nwere  to be sent.  In the present case, all the\t goods\twere\nsent  against the authorisations from the various  factories\nbelonging to the second appellant which were all outside the\nState of Mysore and were received in the State of Mysore  by\nthe various\n778\npurchasers.  The Sales Tax Officer by his order dated  March\n31,  1958,  took the view that though the  property  in\t the\ngoods passed to the dealers and consumers outside the State,\nof  Mysore, since the goods had actually been  delivered  in\nthe  State  of Mysore as a direct result of such  sales\t for\npurposes  of  consumption in the State, the  sales  must  be\ndeemed to have taken place in that State and, therefore, the\nsales  effected by the first appellant as the sales  manager\nof  the\t second\t appellant, to\tcustomers  in  Mysore  State\namounted  to  intrastate  sales\t and  liable  to  tax  under\nprovisions  of\tthe Mysore Sales Tax Act,  1948.   The\tHigh\nCourt held that as the actual delivery to the purchasers was\nwithin\tthe State of Mysore, the cement loaded\toutside\t the\nState  and despatched to the purchaser did not\tconvert\t the\nsales into inter-State sales but were intrastate Wes.\nHeld, that the sales which took place in the present case in\nwhich the movement of goods was from one State to another as\na result of a convenant or incident of the contract of sale,\nwere in the course of inter-State trade or commerce and fell\nwithin\t Art'\t286(2)\tof  the\t  Constitution\t of   India,\nConsequently, the imposition of sales tax on such sales\t was\nunconstitutional.\nM\/S.   Mohan Lai Hargobind v. The State of  Madhya  Pradesh,\n[1955] 2 S.C.R. 509, followed.\nEndapuri  Narasimhan & son v. The State of Orissa, [1962]  1\nS.C.R. 314, Bengal Immunity Co. Ltd. v. The State of  Bihar,<\/a>\n[1955]\t2 S.C. R. 603 M\/s.  Ram Narain & Sons  v.  Assistant\nCommissioner of Sales Tax,<\/a> [1955] 2 S.C.R. 483 and Tata Iron\nand Steel Co. Ltd.  Bombay v. S. R  Sarkar,<\/a> [1961] 1  S.C.R.\n379, relied on.\nRohtas\tIndustries  Ltd. v. The State of  Bihar,  [1961]  12\nS.T.C. 615, distinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 255 of 1961.
\nAppeal from the judgment and order dated March 21, 1960,  of
\nthe Mysore High Court in Writ Petition No. 147 of 1958.
\nB.   J.\t Kolah, J. B. DadachanJi, O. C. Mathur and  Ravinder
\nNarain, for the appellants.\n<\/p>\n
779<\/span><\/p>\n
C.   K. Daphtary, Solicitor-General of India, B.  R.\t  L.
\nIyengar and P. D. Menon, for respondents.\n<\/p>\n
1962.  August. 28.  The Judgment of the Court was  delivered
\nby.\n<\/p>\n
KAPUR, J This is an appeal against the judgment and order of
\nthe  High Court of Mysore in Writ Petition No. 147  of\t1958
\ndismissing the appellant’s petition under Arts. 226 and\t 227
\nof the Constitution for quashing the order of assessment for
\nthe period of assessment 1955-56 i.e, from April 1, 1955, to
\nMarch  31, 1956.  In this appeal because of  the  Validating
\nAct  (VII  of 1956) the appellants did not  challenge  their
\nliability  for\tthe period April 1, 1955,  to  September  6,
\n1955.\n<\/p>\n
The  facts  necessary for the decision of  this\t appeal\t are
\nthese : Appellant No. 1-The Cement Marketing Co. Ltd-are the
\nSales Managers of the second appellant-The Associated Cement
\nCo. Ltd. appointed under an agreement dated April 21,  1954.
\nThe  High Court has described the first appellant to be\t the
\nDistributors of the second apppellant.\tThe second appellant
\nis a manufacturer of cement and at the material time it\t had
\nover a dozen factories in different parts of India, none  of
\nwhich was in the State of Mysore.  The head office of  first
\nappellant  is at Bombay and it had then a branch  office  at
\nBangalore  in the State of Mysore.  The first appellant\t was
\nregistered as a dealer under the Mysore Sales Tax Act  1948,
\nhereinafter called the “Mysore Act”.  At all material  times
\ncement\twas and still is a controlled article.\tWhether\t the
\nsale  was  to a Government Department i.e. to  the  Director
\nGeneral\t of  Supplies & Disposal, Government of\t India,\t New
\nDelhi,\tor to a person authorised by the said Officer or  to
\nthe’  public it was effected on authorisations given to\t the
\nbuyers by appropriate Government authorities and
\n780<\/span>
\nproduced by them in the office of the first appellant.\tBoth
\nin regard to purchases by the public and the Government\t the
\nModus  operandi\t was more or less identical.   It  was\tthis
\nEvery one wishing to buy cement had to get an  authorisation
\nin  a standard form which authorised the first appellant  to
\nsell cement in quantities mentioned, therein and the  cement
\nhad to be supplied from the factory therein mentioned.\tThat
\ndocument was in the following form which actually ralates to
\na sale to a Government contractor.\n<\/p>\n
“Government of India-Ministrary of Commerce & Industry.
\nOffice\tof  the Regional Honorary Cement Adviser  4\/12\tRace
\nCourse Road, Coimbatore.\n<\/p>\n
Central Quota.\t\t\t      Dated 8-10-1955.\n<\/p>\n
Authorisation No. RA\/CT\/28\/CMI\/1 7 2 CQ.<\/p>\n
\n(CENTELEC)\nPeriod IV\/55\t\t     The Cement Marketing,\nName  of  Suppliers\t       Co. of India P.\tBox  No.613,\nSugar\nCompany Bulding-\nBangalore-2.\n<\/pre>\n
You  are  authorised to sell cement  in\t quantity  mentioned
\nbelow  under this authorisation.  The sale will be a  direct
\ndeal between yourself and
\n 781<\/span>
\nthe purchaser.\tThe Government undertakes no  responsibility
\nof any nature whatsoever:-\n<\/p>\n
Name and    Name of the\t  Quan-\t    Name of Rly.      Re-<\/p>\n
\naddress\nof the person  factory or     cement is to\nin whose      companybe booked.\nfavour\t      required to\nauthorisation\t supply\nis issued.     cement.\n1\t\t  2\t   3\t\t  4\t       5\n     M\/s. G. S.\t    Mudhukkarai300 Bangalore\n     Duggal &  Co Shababadtons\n     Ltd Engineers & Contractors,\n      Jalhalli P.O.\n     Bangalore.\n<\/pre>\n
Ref.  No. J\/1 17\/115 date 29-9-55 from the above  indentors-
\nFor manufacture of the tiles for the Bharat Electronics Ltd.
\nSupply\t   recommended\t   by\t the\t Commander     Works
\nEngineers(B.E.I.P.), Jalahalli.\n<\/p>\n
Full details of the purpose for which and the place at which
\ncement will actually be consumed; Priority, Defence work.
\nSd. C.C. Ramanath,
\nReg, Hon.  Cement Advisor
\n(Coimbatore)
\nCopy to 1. The indentor.\n<\/p>\n
\t      2.    The\t Dy.  Development Officer, Govt.  of
\n\t      India,   Ministry\t of  Commerce  &   Industry,
\n\t      Development    Wing,(Chemicals   1,    Mineral
\n\t      Industries) Shahjehan Road, Now Delhi.\n<\/p>\n
\t      3.    The\t Controller of Civil Supplies in  My
\n\t      sore Bangalore for information”.\n<\/p>\n
782<\/span><\/p>\n
This authorisation was subject to the following\t conditions:
\nIt  was to be utilised within 15 days; the  cement  released
\ncould  be used only for the purpose for which it was  given;
\nthe   authorisation  was  not  transferable;   the   issuing
\nauthority  could, if necessary, revoke the authorisation  at
\nany time and even the orders booked under the  authorisation
\ncould  be cancelled. The purchaser or the indentor had\tthen
\nto place an order with the first appellant as Sales Managers
\nof  the second appellant stating the requirement, where\t the
\ngoods  were  to be sent and how they were to be\t sent.\t The
\nseller\tentered\t into a contract with the  first  appellant.
\nThis contract is in a standard form and gives conditions  of
\nsale.\tThereupon the first appellant instructed its  Bombay
\noffice\tto  despatch  the  cement  in  accordance  with\t the
\ninstructions  of the buyer and the authorisation.   In\tthis
\nletter\tthey had to mention the number of the  authorisation
\nand the person who had issued it and also to whom the  goods
\nwere to be sent and how and certain other details which\t are
\nnot  necessary for the purposes of this appeal were also  to
\nbe given.\n<\/p>\n
Each  instruction  indicates that it was issued for  and  on
\nbehalf\tof appellant No. 2 by appellant No. 1 as  its  Sales
\nManagers.   A copy of the letter of instruction was sent  to
\nthe  factory from where the goods were to be despatched\t and
\nthe  particulars  of the authorisation had to  be  mentioned
\ntherein.  Thereafter the first appellant sent an advice to
\n 783<\/span>
\nthe  purchaser enclosing therewith the Railway\tReceipt\t for
\nthe  goods  and this advice also mentioned  the\t goods\twere
\nbeing  sent. Both the contract of sale and the advice  above
\nmentioned stated that the goods were being despatched at the
\nbuyer’s\t risk  from the time the delivery was  made  by\t the
\nfactory to the carriers and the railway receipt was obtained
\nfor the goods.\tIn the present case all the goods were sent,
\nas  indeed they had to be sent, against\t the  authorisations
\nfrom the various factories belonging to the second appellant
\nwhich  at  the relevant time were all  situate\toutside\t the
\nState of Mysore and were received in the State of Mysore  by
\nthe various purchasers.\n<\/p>\n
The  position of the first appellant is as was\taccepted  by
\nthe  Sales  tax Officer in his order dated March  31,  1958,
\nthat of Sales Managers of the second appellant but in regard
\nto  the\t nature of the transactions the\t Sales\ttax  Officer
\nfound:-\n<\/p>\n
\t      ” Though the property in the goods pass to the
\n\t      dealers\tand  consumers\toutside\t the   State
\n\t      immediately  the goods are handed over to\t the
\n\t      carriers outside the state and railway receipt
\n\t      is  taken\t out since the goods  have  actually
\n\t      been  delivered  In Mysore State as  a  direct
\n\t      result   of   such  sale\t for   purposes\t  of
\n\t      consumption  in the State, sale is  deemed  to
\n\t      have taken place in Mysore State”.
\n\t      and again he said:-\n<\/p><\/blockquote>\n
\t      “Thus  the  sales of  cement  manufactured  by
\n\t      A.C.C.\t Factories     situated\t     outside
\n\t      Mysore  .State  effected by the  dealers\tM\/s.
\n\t      Cement   Marketing  Company  of\tIndia\tLtd.
\n\t      Bangalore, to dealers and customers in  Mysore
\n\t      State   amounts\tto  intrastate\t sales\t and
\n\t      therefore liable to Mysore Sales Tax Act 48”.\n<\/p><\/blockquote>\n
784<\/span><\/p>\n
In  its judgment the High Court took into consideration\t the
\nfact  that  the\t first\tappellant had  a  branch  office  at
\nBangalore  within  the State of Mysore and that\t the  public
\nplaced their orders with the first appellant for supplies of
\ncement\tagainst\t permits  granted to them;  that  the  first
\nappellant, who after accepting the offer for the supplies of
\ncement,\t collected the price from the  intending  purchasers
\nand  then  directed  one  of the  factories  of\t the  second
\nappellant  to  supply cement to the  purchasers\t and  actual
\ndelivery  to the purchaser was within the State)  of  Mysore
\nand therefore the contention that cement was loaded  outside
\nthe State of Mysore and despatched to the purchaser did\t not
\nnot  convert  sales into inter-State sales but\twere  intra-
\nstate  sales.\tIt  appears  that the  true  nature  of\t the
\ntransaction was not correctly considered by the High Court,
\nThe  modus  operandi above mentioned shows  that  before  an
\nintending  purchaser could obtain cement he had to get\twhat
\nis called an authorisation from a Government authority which
\nnominated the factory from which the intending purchaser had
\nto  get his supplies of cement.\t That authorisation with  an
\norder  had to be given to the first appellant; and  after  a
\ncontract  in  the standard form was entered into  the  first
\nappellant  sent\t the  order  to the  factory  named  in\t the
\nauthorisation  and that factory then supplied the  requisite
\ngoods  to the purchaser.  The factory from where the  cement
\nwas to be supplied was not in the hands or at the option  of
\nthe  first  appellant,\tbut was entirely a  matter  for\t the
\nGovernment authority to decide, so that the cement which was
\nsupplied  from a particular factory was supplied not at\t the
\nchoice\t of  the  first\t appellant  but\t pursuant   to\t the
\nauthorisation.\n<\/p>\n
It  was\t contended that the sales which took  place  in\t the
\npresent case in which the movement of
\n785<\/span>
\ngoods  was  from  one  State to another as  a  result  of  a
\ncovenant  or  incident of the contract of sale\tfell  within
\nArt. 286(2) of the Constitution and therefore the imposition
\n‘of  Sales  tax\t on such sales\twas  unconstitutional.\t The
\nArticle\t applicable  at the relevant time i.e.,\t before\t its
\namendment was as follows: –\n<\/p>\n
\t      286  (1)\t“No law of a State shall  impose  or
\n\t      authorise the imposition of a tax on the\tsale
\n\t      or  purchase  of\tgoods  where  such  sale  or
\n\t      purchase takes place.\n<\/p><\/blockquote>\n
\t      (a)   outside the State; or\n<\/p><\/blockquote>\n
\t      (b)   in the course of the import of the goods
\n\t      into  or\texport\tof the\tgoods  out  of,\t the
\n\t      territory of India.\n<\/p><\/blockquote>\n
\t      Explanation ……………………… .
\n\t      (2)   Except  in so far as Parliament  may  by
\n\t      law otherwise provide, no law of a State shall
\n\t      impose, or authorise the imposition of, a\t tax
\n\t      on  the  sale or purchase of any\tgoods  where
\n\t      such  sale  or  purchase takes  place  in\t the
\n\t      course of inter-State or commerce:
\n\t      Provided……………………………”\n<\/p><\/blockquote>\n
The Article had since been repealed and another\t substituted
\nin  its place by the Constitution (Sixth Amendment) Act\t but
\nthe sales in question were prior to the amendment.
\nIn  the\t present  case\tthe  contract  itself  involved\t the
\nmovement  of goods from the factory to the purchaser  i.  e.
\nacross\tthe  broder from one State to  another\tbecause\t the
\nfactories  were\t outside the State of Mysore  and  therefore
\ntransactions were
\n786<\/span>
\nclearly\t transactions  of  sale of goods in  the  course  of
\ninter-State  trade  or commerce.  Taking the nature  of\t the
\ntransaction  and preliminaries which are necessary  for\t the
\nsale  or purchase of cement it cannot be said that the\tsale
\nitself\tdid  not occasion the movement of  goods  from-\t one
\nState  to another.  The essential features of the  contracts
\nproved\tin the present case are analogous to those  in\tM\/s.
\nMohan  Lai Hargovind v. The State of Madhya  Pradesh.(1)  In
\nthat case the assessees were a firm carrying on business  of
\nmaking\tand selling birds in Madhya Pradesh.  In the  course
\nof  their  business  they  imported  finished  tobacco\tfrom
\ndealers\t in Bombay State, rolled it into biris and  exported
\nthe  biris to various other States.  Both the  exporters  of
\ntobacco from Bombay State who supplied the assessees and the
\nassessees  were registered dealers under the C. P.  &  Berar
\nSales  Tax  Act.,  1947.   It was  held\t that  the  asessees
\nimported  the  finished\t tobacco into  Madhya  Pradesh\tfrom
\npersons who were carrying on in the State of Bombay business
\nof  processing tobacco and selling the goods and there\twas,
\nas a result of these transactions movement of goods from the
\nState of Bombay to the State of Madhya Pradesh and therefore
\nthe transactions involved movement of goods across the State
\nborder\tand  they were not liable to be taxed by  virtue  of
\nArt.  286  (2)\tof  the\t Constitution.\t In  The  State\t  of
\nPravancore  Cochin & Others v. The Bombay Co Ltd. (1)  which
\nwas a case under art. 286 (1) (b) i. e. sale and purchase in
\nthe  course  of\t export\t trade,\t Patanjali  Sastri,  C.\t J.,
\nobserved:-\n<\/p>\n
\t      “A  sale by export thus involves a  series  of
\n\t      integrated  activities  commencing  from\t the
\n\t      agreement\t of  sale with a foreign  buyer\t and
\n\t      ending  with  the delivery of the goods  to  a
\n\t      common carrier for transport out of the
\n\t      (1)  (1935) 2 S. C. R. 509.  (2) (1952) S.  C.
\n\t      R. III2.\n<\/p><\/blockquote>\n
\t      787<\/span><\/p>\n
\t      country  by land\tor sea.\t Such a sale  cannot
\n\t      be  dissociated from the export without  which
\n\t      it  cannot  be effectuated, and the  sale\t and
\n\t      resultant\t export\t from  parts  of  a   single
\n\t      transactions.\n<\/p><\/blockquote>\n
\t      At  p.  1120 the learned Chief  Justice  again
\n\t      observed:\n<\/p><\/blockquote>\n
\t      “We accordingly hold that whatever else may or
\n\t      may not fall within article 286 (1) sales\t and
\n\t      purchases which themselves occasion the export
\n\t      or  the import of the goods, as the  case\t may
\n\t      be, out of or into the territory of India come
\n\t      within  the  exemption and that is  enough  to
\n\t      dispose of these appeals”.\n<\/p><\/blockquote>\n
Thus a sale to fall within Art. 286 (1) (b) has to be a sale
\nwhich  occasions  the  export.\t Again\tin  the,  State\t  of
\nTravancore  Cochin  & Other8 v. Shammugha Vilas\t Cashew\t Nut
\nFactory\t &  Other8<\/a>  (1) the words “in the  course  of”\twere
\ninterpreted to mean a sale taking place not only during\t the
\nactivities  directed to the end of exportation of the  goods
\nout  of the contury but also as a part of or connected\twith
\nsuch  activities.   At\tp.  63\tthe  learned  Chief  Justice
\nexplained the words “integrated activities” as follows:-\n<\/p>\n
\t      “The  phrase “integrated activities” was\tused
\n\t      in the previous decision to denote that  “such
\n\t      a\t sale”\t(i. e. a sale  which  occasions\t the
\n\t      export) “cannot be dissociated from the export
\n\t      without  which it cannot be  affectuated,\t and
\n\t      the  sale and the resultant export form  parts
\n\t      of a single transaction’.\t It is in that sense
\n\t      that  the\t two  activities-the  sale  and\t the
\n\t      export-were said to be integrated”.\n<\/p><\/blockquote>\n
In Endu puri Narasiham & Son v. The State of Orissa, it\t was
\nheld in the case of sales covered
\n(1) (1954) S. C. R. 53.\n<\/p>\n
(2) (1962) 1 S. C. R. 314.\n<\/p>\n
788<\/span><\/p>\n
by  Art.  286 (1) (b) that only Bale or purchase  ‘of  goods
\nwhich occasions the export or import of the goods out of  or
\ninto the territory of India were exempt from the  imposition
\nof  tax\t on the sale or purchase of goods and in  regard  to
\nprohibition  against imposition of tax on inter-State  sales
\nthe  test,  it was said, was that in order that\t a  sale  or
\npurchase  might\t be inter-State it is essential\t that  there
\nmust  be transport of goods from one State to another  under
\nthe contract of sale or purchase.  The following observatins
\nfrom the Bengal Immunity Co.  Ltd. v. The State of Bihar<\/a> (1)
\nwere quoted with approval in support of the position:-\n<\/p>\n
\t      “A  sale could be said to be in the course  of
\n\t      inter-State  trade  only\tif  two\t  conditions
\n\t      concur:  (1)  A  sale  of\t goods,\t and  (2)  a
\n\t      transport\t of  those goods from one  State  to
\n\t      another  under the contract of  sale.   Unless
\n\t      both these conditions are satisfied, there can
\n\t      be  no  sale  in\tthe  course  of\t inter-State
\n\t      trade”.\n<\/p><\/blockquote>\n
Thus  the  tests which have been laid down to bring  a\tsale
\nwithin\tinter-State  sales  are that  the  transaction\tmust
\ninvolve\t movement  of  goods  across  the  border  (Mohanlal
\nHargovind’s  case  (2) ); transactions\tare  inter-State  in
\nwhich  as  a  direct  result of such  sales  the  goods\t are
\nactually delivered for consumption in another State; M\/s Ram
\nNarain It Ssns V. Assistant Commissioner of Sales tax (3)  a
\ncontract  of sale must involve transport of goods  from\t one
\nState to another under the contract of sale; Bengal Immunity
\nCo’  case (1). in the case of sales in the course of  export
\nor  import  the test laid down was a  series  of  integrated
\nactivitiesm commencing from an agreement of sale and  ending
\nwith the delivery of goods to a common
\n(1) (1955) 2 S. C. R. 603, 784-5  (2) (1965) 2 S.G R. 509.
\n(3) (1955) 2 S, C. R. 483, 504.\n<\/p>\n
789<\/span><\/p>\n
carrier for export by land or by sea ; The Bombay Co.\tLtd,
\ncase  (1).  “In the course of” was explained to mean a\tsale
\ntaking place not only during the activities directed to\t the
\nend  of the exportation of the goods out of the country\t but
\nalso  as  part\tof or connected\t with  such  activities\t and
\n“integrated activities” was explained in similar  langauage.
\nThis  Court again accepted these tests in Endupuri  Narasim-
\nham’s case (2).\t In a. 3 of the Central Sales Tax Act,\t1956
\n(Act 74 of 1956), the legislature has accepted the principal
\ngoverning   inter-State\t  sales\t as  laid  down\t  in   mohan
\nHargovind’s case (3).  The principles for determining when a
\nsale  or  purchase  of goods takes place in  the  course  of
\ninter-state sale or commerce outside the state are :\n<\/p>\n
\t      “S.3  A  sale or purchase of  goods  shall  be
\n\t      deemed  to take place in the course of  inter-
\n\t      State  trade or commerce if the sale  or\tpur-
\n\t      chase –\n<\/p><\/blockquote>\n
\t      (a)   occasions the movement of goods from one
\n\t      State to another ; or\n<\/p><\/blockquote>\n
\t      (b)   is\teffected by a transfer of  documents
\n\t      of  title to the goods during  their  movement
\n\t      from one State to another”.\n<\/p><\/blockquote>\n
In  Tata  Iron\t& Steel Co. Ltd, Bombay\t v.  S.R.  Sarkar  &
\nAnother<\/a>\t (4) Shah, J., in explaining what sales are  covered
\nby el. (a) of s.3 above said :\n<\/p>\n
\t       “Cl.  (a)  of a. 3 covers sales,\t other\tthan
\n\t      those  included  in  Cl.\t(b),  in  which\t the
\n\t      movement of goods from one state to another is
\n\t      the  result of a convenant or incident of\t the
\n\t      contract\tof sale. and property in  the  goods
\n\t      passes in either State .”\n<\/p><\/blockquote>\n
As  stated above under the contracts of sale in the  present
\ncase there was transport of goods from
\n(1)  [1952] S C.R. 112.\n<\/p>\n
(3)  (1955) 2 S.G.R. 509.\n<\/p>\n
(2)  (1962) 1 S.C.R. 314.\n<\/p>\n
(4)  (1961) 1 S.C.R. 379,391,
\n790<\/span>
\noutside the State of Mysore into the State of Mysore and the
\ntransactions  themselves involved movement of  goods  across
\nthe  border.  Thus if the goods moved under the contract  of
\nsale, it cannot be said that they were intrastate sales.  It
\nwas not the volition of the first appellant to supply to the
\npurchaser the goods from any of the factories of the  second
\nappellant.   The factories were nominated by the  Government
\nby  authorisations  which formed the basis of  the  contract
\nbetween\t the buyer and the seller.  Applying these tests  to
\nthe facts of the present case we are of the opinion that the
\nsales  were  in\t the nature of inter-State  sales  and\twere
\nexempt from Sales tax.\tIn these circumstances the contracts
\nof sale in the present case have been erroneously considered
\nto be intrastate sales.\n<\/p>\n
The decision in Rohtas Industrieg Ltd. v. The State of Bihar
\n(1)  to which reference was made by the respondent does\t not
\napply to the facts of the present case because the agreement
\nbetween\t the  first appellant and the  second  appellant  is
\ndifferent from that which existed between Rohtas  Industries
\nLtd. and the Cement Marketing Co of India in the case  above
\ncited. (in an examination of the agreement between those two
\ncompanies  this\t court held that the  rotation.\t ship  which
\nexisted\t between the two was of seller and buyer and not  of
\nprincipal agent.  In the present case the agreement is quite
\ndifferent.  In the first clause of the agreement between the
\ntwo  appellants and the Patimia Cement Co. dated  April\t 21,
\n1954,  the  first  appellant  was  appointed  the  sole\t and
\nexclusive Sales Manager of the second appellant and as\tsuch
\nthe first appellant was entitled to enter into contracts  of
\nsale, receive payment of the same and do all seta and things
\nnecessary  for the effective management in  connection\twith
\nthe  contracts\tof  sale  entered  into\t on  behalf  of\t the
\nprincipals.  The sale price and the terms and conditions  of
\nsale were to be
\n(1)  (1961) 12 S.T.C. 615.\n<\/p>\n
 791<\/span><\/p>\n
determined by the principals.  The Sales Manager was to keep
\nits  administrative  and technical staff at such  places  in
\nIndia  as  was\tdetermined  by\tthe  principals.   All\t the
\nestablishment  charges\tand  other  expenses  of  the  Sales
\nManagers  were for and on behalf of the principals and\twere
\nto  be\tdefrayed by the principals in  proportion  to  their
\nannual sales.  At the end of every mouth the Sales  Managers
\nwere to submit to the principals accounts showing sales con-
\ntracts by it on behalf of each one of the principals. At the
\nend of each financial year ending July 31 the Sales Managers
\nhad to make a. proper account of all their operations during
\nthe  year and after submitting them for confirmation to\t the
\nprincipals had to pay the price of annual sales realizations
\nto  each of the principals to whom they happened to  relate.
\nClause\tto  provided  that subject to  instructions  of\t the
\nprincipals  the\t Sales Managers were to make  all  necessary
\narrangements  to secure speedy and economicial transport  of
\ncement.\t  These terms are quite different from those in\t the
\ncase  of Rohtas Industries Ltd. and therefore that  decision
\nhas no application to the facts of the present case.
\nIn  the\t result,  the imposition of the\t Sales\ttax  on\t the
\nappellant  for the year of assessment except for the  period
\nApril 1, 1955, to September 6, 1955, was illegal and was not
\nleviable  for that period.  The appeal is therefore  allowed
\nto  that extent and the petition of the appellants  succeeds
\nbut  it\t will  not  effect  the\t tax  paid  for\t the  period
\nabovementioned.\t   In  view  of\t the  partial\tsuccess\t  of
\nappellants  they  will\tbe entitled to\thalf  costs  of\t the
\nappeal.\n<\/p>\n
Appeal allowed in part.\n<\/p>\n
(1) (1961) 12 S.T.C. 615.\n<\/p>\n
792<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Cement Marketing Co., Of … vs The State Of Mysore And Another on 28 August, 1962 Equivalent citations: 1963 AIR 980, 1963 SCR Supl. (3) 777 Author: K L. Bench: Das, S.K., Kapur, J.L., Sarkar, A.K., Hidayatullah, M., Dayal, Raghubar PETITIONER: THE CEMENT MARKETING CO., OF INDIALTD. AND ANOTHER Vs. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-134718","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Cement Marketing Co., Of ... vs The State Of Mysore And Another on 28 August, 1962 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-cement-marketing-co-of-vs-the-state-of-mysore-and-another-on-28-august-1962\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Cement Marketing Co., Of ... vs The State Of Mysore And Another on 28 August, 1962 - 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