{"id":18550,"date":"1961-09-27T00:00:00","date_gmt":"1961-09-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/b-k-wadeyar-vs-ms-daulatram-rameshwarlal-on-27-september-1961"},"modified":"2016-04-06T15:15:42","modified_gmt":"2016-04-06T09:45:42","slug":"b-k-wadeyar-vs-ms-daulatram-rameshwarlal-on-27-september-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/b-k-wadeyar-vs-ms-daulatram-rameshwarlal-on-27-september-1961","title":{"rendered":"B. K. Wadeyar vs M\/S. Daulatram Rameshwarlal on 27 September, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
B. K. Wadeyar vs M\/S. Daulatram Rameshwarlal on 27 September, 1961<\/div>\n
Equivalent citations: 1961 AIR 311, \t\t 1961 SCR (1) 924<\/div>\n
Author: K D Gupta<\/div>\n
Bench: Gupta, K.C. Das<\/div>\n
           PETITIONER:\nB. K. WADEYAR\n\n\tVs.\n\nRESPONDENT:\nM\/S.  DAULATRAM RAMESHWARLAL\n\nDATE OF JUDGMENT:\n27\/09\/1961\n\nBENCH:\nGUPTA, K.C. DAS\nBENCH:\nGUPTA, K.C. DAS\nDAS, S.K.\nHIDAYATULLAH, M.\nSHAH, J.C.\nAYYANGAR, N. RAJAGOPALA\n\nCITATION:\n 1961 AIR  311\t\t  1961 SCR  (1) 924\n CITATOR INFO :\n R\t    1964 SC1752\t (15)\n RF\t    1971 SC 870\t (23,24)\n R\t    1971 SC2277\t (3)\n E\t    1975 SC1564\t (29,30,67,68)\n RF\t    1975 SC1652\t (14)\n RF\t    1977 SC 247\t (14)\n\n\nACT:\n Sales Tax--Export--Meaning of--Property in exported goods in\n F.  O.\t B.  contracts--If  Passes  on\tshipment  or   before\n it--Export licence--obtainable by buyer or seller--\"Person\",\n meaning  of--Bombay Sales Tax Act, 1953 (Bom.\tIII of\t1953)\n s.  10(b)--The Import and Export (Control) Act, 1947  (XVIII\n of 1947) s. 5(2)--Constitution of India, Art. 286(1)(b).\n\n\n\nHEADNOTE:\n The respondents firm claimed exemption from Sales Tax\tunder\n Art. 286(i)(b) of the Constitution in respect of sales\n 925\n made by them of cotton and castor oil on the ground that the\n sales were on F.O.B. contracts under which they continued to\n be  the  owners of the goods till those crossed  the  custom\n barrier and entered the export stream.\t They also  contested\n the purchase tax to which they were assessed under s.\t10(b)\n of  the  Bombay Sales Tax Act.\t The High  Court  upheld  the\n contention  of the respondents regarding the Sales  Tax  but\n held  that they were liable to pay purchase tax.  On  appeal\n by both the parties\n Held,\tthat  the goods remained the seller's  property\t till\n those\thad been brought and loaded on board the ship and  so\n the  sales were exempted from tax under Art. 286(i)  of  the\n Constitution.\n The  word \" a person \" in s. 10(b) of the Bombay  Sales  Tax\n Act had been correctly interpreted as \" a registered  dealer\n \"  and the purchasing dealers had been rightly\t assessed  to\n purchase tax.\n The normal rule in F. 0. B. contracts was that the  property\n was  intended\tto pass and did pass on the shipment  of  the\n goods.\n The  presumption in F. 0. B. contracts was that it  was  the\n duty  of the buyer to obtain the necessary  export  licence,\n though\t in the circumstances of a particular case that\t duty\n might fall on the seller.\n H.O. Brandt & Co. v. H. N. Morris & Co. Ltd., [1917] 2\t K.B.\n 784 and M. W. Hardy & Co. v. A. V. Pound & Co., Ltd., (1953)\n 1.Q.B. 499, considered.\n\t       \"Export \" under the Import and Export  Control\n\t       Act  having  been defined as \" taking  out  of\n\t       India  by  land, sea or air \"  it  could\t not,\n\t       under  the  Export Control Order, be  held  to\n\t       have  commenced\ttill the  ship\tcarrying  the\n\t       goods  left the port or in some\tcases\n\t       passed the territorial waters.\n The  State  of\t Bombay v. The United  Motors  (India)\tLtd.,<\/a>\n (1953) 4 S.T.C. 133, held inapplicable.\n\n\n\nJUDGMENT:\n<\/pre>\n
 CIVIL\tAPPELLATE JURISDICTION: Civil Appeals Nos. 45 and  46
\n of 1959.\n<\/p>\n
 Appeal\t by special leave from the judgment and\t order\tdated
\n March\t25, 1957, of the former Bombay High Court  in  Appeal
\n No. 16 of 1957.\n<\/p>\n
 Q.  K. Daphtary, Solicitor-General of India, H.  J.  Umrigar
\n and  D. Gupta, for the Apellant (In C. A. No. 45 of 59)  and
\n Respondent (In C. Appeal No. 46 of 59).\n<\/p>\n
 H. N. Sanyal, Additional Solicitor-General of India, S.   N.
\n Andley\t and J. B. Dadachanji, for the respondents (in C.  A.
\n No. 45 of 59) and Appellants (In C. A. No. 46\/59).\n<\/p>\n
 926<\/span><\/p>\n
 1960.\t September  27.\t  The  Judgment\t of  the  Court\t  was
\n delivered by
\n DAS GUPTA J.-M\/s. Daulatram Rameshwarlal, a firm  registered
\n under the Indian Partnership Act (referred to later in\t this
\n judgment  as “sellers “) are registered dealers under s.  11
\n of  the Bombay Sales Tax Act.\tIn their return\t of  turnover
\n for  the period from April 1, 1954 to March 31,  1955,\t they
\n claimed  exemption  from Sales Tax in respect\tof  sales  of
\n cotton\t of  the total value of Rs. 68,493-2-6 and  sales  of
\n castor\t oil  of the total value of Rs. 6,47,509-1-6  on  the
\n ground that these sales were oil FOB contracts, under\twhich
\n they continued to be the owners of the goods till the\tgoods
\n had crossed the customs barrier and thus entered the  export
\n stream, and so no tax was realisable on these sales in\t view
\n of the provisions of Art. 286 (1)(b).\n<\/p>\n
 The Sales Tax Officer rejected this claim for exemption  and
\n assessed  them to sales tax on a taxable turnover  including
\n these sales.  He also assessed them to purchase tax under s.
\n 10(b)\tof  the\t Bombay Sales Tax Act on  their\t purchase  of
\n castor\t oil  which  they  later sold  for  the\t sum  of  Rs.
\n 6,47,509-1-6  as mentioned above.  The notice of demand  for
\n the total sales tax and the purchase tax assessed was served
\n on the sellers on September 30, 1956.\tThe sellers thereupon
\n moved the Bombay High Court under Art. 226 of the  Constitu-
\n tion  for  the issue of appropriate writs for\tquashing  the
\n order\tof  assessment\tand  the notice\t of  demand  and  for
\n prohibiting  the  Sales Tax Officer from  taking  any\tsteps
\n pursuant to the order or the notice.  The learned Judge  who
\n heard the petition rejected the sellers’ contention that the
\n goods remained their property till these crossed the customs
\n frontier  and\ttherefore  held that  the  sellers  were  not
\n entitled   to\t the  benefit  of  Art.\t 286(1)(b)   of\t  the
\n Constitution.\t As  regards the assessment to\tpurchase  tax
\n also he rejected the sellers’ contention that the assessment
\n in  question  was illegal.  In this view the  learned\tJudge
\n dismissed the application under Art. 226.
\n Against this decision the sellers appealed.  The
\n 927<\/span>
\n learned  Judges who heard the appeal held, disagreeing\t with
\n the  Trial  Judge,  that the  goods  remained\tthe  sellers’
\n property  till the goods had been brought on board the\t ship
\n and so the sales were exempted from tax under Art. 286(1)(b)
\n of  the  Constitution.\t They however agreed with  the\tTrial
\n Judger\t that  the sellers were liable to  pay\tpurchase  tax
\n under\ts.  10(b) of the Bombay Sales Tax  Act.\t  Accordingly
\n they  directed\t the  Sales Tax Officer not  to\t enforce  the
\n demand for payment of sales tax with regard to the sales  of
\n cotton\t for  Rs. 68,493-2-6 and sale of castor\t oil  of  the
\n total value of Rs. 6,47,509-1-6.\n<\/p>\n
 The Sales Tax Officer has, on the strength of special\tleave
\n granted  by this Court, preferred the appeal which has\t been
\n numbered  as  Civil  Appeal  No.  45  of  1959\t against  the
\n appellate  court’s  order directing him not to\t realise  the
\n sales\ttax  in respect of sales of cotton  and\t castor\t oil.
\n Civil\tAppeal\tNo.  46 of 1959 has  been  preferred  by  the
\n sellers against the appellate court’s judgment in so far  as
\n it upheld the assessment of purchase tax under s. 10(b).
\n The  only  “question for our decision in the appeal  by  the
\n Sales Tax Officer is whether property in the goods passed on
\n shipment or at some point of time before shipment.  The  law
\n is now well-settled that if the property in the goods passes
\n to the buyer after they have for the purpose of export to  a
\n foreign  country crossed the customs frontier the  sale  has
\n taken\tplace “in course of the export” out of the  territory
\n of India.  If therefore in the present sales the property in
\n the  goods passed to the buyers on shipment, that is,\tafter
\n they had crossed the customs frontier the sales must be held
\n to  have  taken  place “in the course\tof  export”  and  the
\n exemption  under  Art. 286(1)(b) will come  into  operation.
\n The sellers’ case is that these were sales on FOB contracts.
\n Though the learned Solicitor-General appearing on behalf  of
\n the  Sales Tax Officer tried to convince us that these\t were
\n not really FOB contract sales, it appears that the  averment
\n in  Paras. 11 and 13 of the writ petition that\t these\tsales
\n were  made  on\t FOB basis were not  denied  in\t the  counter
\n affidavit sworn by the Sales Tax Officer.  It is also
\n 928<\/span>
\n worth noticing that in the assessment order itself the\t Sale
\n Tax  Officer referred to these sales as sales on FOB  basis.
\n The  specimen\tcontract produced also used the words  ”  FOB
\n delivered “. There can be no doubt therefore that these were
\n sales under FOB contracts.’ The normal rule in FOB contracts
\n is  that the property is intended to pass and does  pass  on
\n the shipment of the goods.  In certain circumstances,\te.g.,
\n if  the seller takes the bill of , lading to his  own\torder
\n and  parts  with it to a third person the  property  in  the
\n goods, it has been held, does not pass to the buyer even  on
\n shipment.   We\t are  not concerned here  with\tthe  question
\n whether  the passing of property in the goods was  postponed
\n even  after  shipment.\t The correctness of  the  proposition
\n that in the absence of special agreement the property in the
\n goods does not pass in the case of a FOB contract until  the
\n goods are actually put on board is not disputed before us.
\n As  has  however  been\t rightly  stressed  by\tthe   learned
\n Solicitor  General it is always open to the parties to\t come
\n to a different agreement as to when the Dropert in the goods
\n shall pass.  The question whether there was such a different
\n agreement  has to be decided on a consideration of  all  the
\n surrounding circumstances.  He relies on three circumstances
\n to  convince us that the sellers and their buyers agreed  in
\n these\tsales that the property will pass to the  buyer\t even
\n before shipment.  The first circumstance on which he  relies
\n is  that  the bill of lading was taken in the\tname  of  the
\n buyer.\t Along with this fact we have to consider however the
\n fact  that the bill of lading was retained by\tthe  sellers,
\n the  contract\tbeing  that  payment  will  be\tmade  on  the
\n presentation of the bill of lading.  It is not disputed that
\n the  term  in the contract for “payment  at  Bombay  against
\n presentation of documents ” means this.  It was the  sellers
\n who  received\tthe  bills  of\tlading\tand  it\t was  on  the
\n presentation  of  these  bills\t of  lading  along  with  the
\n invoices  that the buyer paid the price.  When the bills  of
\n lading\t though made out as if the goods were shipped by  the
\n buyer,\t were actually obtained and retained by the  sellers,
\n that fact itself would ordinarily indicate an intention of
\n 929<\/span>
\n the  parties that the property in the goods would  not\t pass
\n till after payment.\n<\/p>\n
 The  second  circumstance to which our\t attention  has\t been
\n drawn is that the export was under the contract to be\tunder
\n the  buyer’s  export licence.\tThis, in our  opinion,\tshows
\n nothing.   The ordinary rule in FOB contracts is that it  is
\n the  duty  of\tthe  buyer to  obtain  the  necessary  export
\n licence.  That was laid down in Brandt’s case (1) and though
\n in a later case in Hardy v. Pound (2) the Court of Appeal in
\n England held that the judgment in Brandt’s case (1) does not
\n cover\tevery FOB contract and that in the special  facts  of
\n the  particular case before them it was for the  sellers  to
\n obtain\t the licence and this view was approved by the\tHouse
\n of  Lords (1956 A. C. 588), it is in our opinion correct  to
\n state\tthat the presumption in FOB contracts is that  it  is
\n the  duty of the buyers to obtain export licence, though  in
\n the circumstances of a particular case this duty may fall on
\n the sellers.\n<\/p>\n
 The third circumstance on which reliance is placed on behalf
\n of  the Sales Tax Officer is that the Export Control  Order,
\n 1954,\twhich was passed in the exercise of powers  conferred
\n by Import & Export Control Act, 1947, contained a  provision
\n in  its clause 5(2) in these words:-” It shall be deemed  to
\n be  a condition of that licence………………  that  the
\n goods\tfor the export of which licence is granted  shall  be
\n the property of the licensee at the time of the export “. It
\n has  been  strenuously contended by  the  learned  Solicitor
\n General that it will be reasonable to think that the parties
\n to  the contract intended to comply with this condition  and
\n to  agree as between themselves that the goods shall be  the
\n property of the licensee, that is, the buyer, at the time of
\n the export.  It is argued that the time of the export should
\n be  interpreted  as the time when the\tcustoms\t frontier  is
\n crossed and that we must proceed on the basis that the buyer
\n and the sellers intended that the goods shall be the buyer’s
\n property  at  the  point  of time  when  they\tcrossed\t this
\n frontier.  We see however no justification for thinking that
\n in this clause “the time of the export ” means the time
\n (1) [1917] 2 K.B. 784.\n<\/p>\n
 (2) [1955] 1 Q.B. 499.\n<\/p>\n
 930<\/span><\/p>\n
 when the goods cross the customs frontier.  Export  has been
\n defined  in  the Import & Export (Control) Act, 1947,\tas  ”
\n taking\t out of India by sea, land or air “. In\t the  Exports
\n (Control)  Order, 1954, the word must be taken to  have  the
\n same meaning as in the Act.  On that definition the time  of
\n the  export  is  the  time when the  goods  go\t out  of  the
\n territorial limits of India.  These territorial limits would
\n include  the territorial waters of India.  Consequently  the
\n time of the export is when the ship with the goods goes  be-
\n yond the territorial limits.  At any rate, the export of the
\n goods cannot be considered to have commenced before the ship
\n carrying  goods  leaves  the port.   The  intention  of  the
\n parties that in compliance with the requirements of cl. 5(2)
\n of  the  Exports  (Control) Order the\tgoods  shall  be  the
\n property  of  the licensee at the time of the\texport\twould
\n therefore  mean nothing more than that the property  in  the
\n goods shall pass immediately before the ship goes beyond the
\n territorial  waters of the country, or at the earliest\t when
\n the ship leaves the port.  Whichever view is taken there  is
\n nothing  to indicate that the intention to comply  with  the
\n requirements  of  el. 5(2) of the  Exports  (Control)\tOrder
\n carries  with it an intention that the property should\t pass
\n to  the  buyer\t at  the time the  goods  cross\t the  customs
\n frontier.   It is true that in the United Motor’8  Case  (1)
\n and  in other cases it has been held by this Court that  the
\n course\t of export commences to run when the goods cross  the
\n customs  barrier.  What the court had to consider  in\tthese
\n cases\twas  not  however when export  commences  within  the
\n meaning  of the Exports (Control) Order but when the  course
\n of export commences for the purpose of Art. 286(1)(b) of the
\n Constitution.\t For the reasons which need not\t be  detailed
\n here  it was decided that the course of export commences  at
\n the  time when the goods cross the customs  barrier.\tThese
\n decisions  as\tregards\t the commencement of  the  course  of
\n export\t are of no assistance in deciding about the point  of
\n time  when the export proper commences.  As we have  already
\n pointed  out  when export has been defined in the  Import  &
\n Export
\n (1)  (1953) 4 S.T.C. 133.\n<\/p>\n
 931<\/span><\/p>\n
 (Control)  Act, 1947, as “taking out of India by land,\t sea,
\n or air “, export in the Export Control Order, cannot be held
\n to have commenced till at least the ship carrying the\tgoods
\n has  left the port, though it may in some contexts  be\t more
\n correct  to say that it does not commence till the ship  has
\n passed beyond the territorial waters.\n<\/p>\n
 We  have therefore come to the conclusion that there  is  no
\n circumstance  which  would  justify a\tconclusion  that  the
\n parties  came to a special agreement that though  the\tsales
\n were  on FOB contracts property in the goods would  pass  to
\n the  buyer at some point of time before shipment.  We\tthink
\n that  the learned judges who heard the appeal in the  Bombay
\n High  Court  were right in their conclusion that  the\tgoods
\n remained  the\tsellers’  property till the  goods  had\t been
\n brought  and loaded on board the ship and so the sales\t were
\n exempted from tax under Art. 286(1)(b) of the Constitution.
\n In Civil Appeal No. 46 of 1959 the appellants’ contention is
\n that  on  a correct interpretation of the provisions  of  s.
\n 10(b)\tof  the\t Bombay Sales Tax Act  no  purchase  tax  was
\n leviable from them.  Section 10(b) provides for the levy  of
\n a  purchase  tax  on  the  turnover  of  purchase  of\tgoods
\n specified  in column I of Schedule B, at the rates, if\t any,
\n specified  against  such  goods  in column  4\tof  the\t said
\n schedule,  “where  a certificate under cl. (b) of s.  8  has
\n been  furnished in respect of such goods and the  purchasing
\n dealer\t does not show to the satisfaction of  the  Collector
\n that the goods have been despatched by him or by a person to
\n whom  he has sold the goods to an address outside the\tState
\n of  Bombay  within a period of six months from the  date  of
\n purchase  by  the  dealer  furnishing\tsuch  certificate  “.
\n Section  8(b) provides for the deduction from the  turnover,
\n of sale of goods to a dealer who holds an authorisation  and
\n furnishes  to\tthe  selling  dealer  a\t certificate  in  the
\n prescribed form declaring inter alia that the goods so\t sold
\n to  him  are  intended for being despatched  by  him  or  by
\n registered dealers to whom he sells the goods to an  address
\n outside the State of Bombay.  Admittedly such a  certificate
\n was furnished by
\n 932<\/span>
\n M\/s.\tDaulatram Rameshwarlal in respect of the  castor  oil
\n which they sold to others and that in respect of these sales
\n to  them  their  sellers were\tallowed\t deductions.   It  is
\n equally undisputed that the persons to\t whom M\/s.  Daulatram
\n Rameshwarlal sold the goods were sent to an address  outside
\n the  State of Bombay within a period of six months from  the
\n date  of  purchase by M\/s.  Daulatram\tRameshwarlal.\tThese
\n persons  are however not registered dealers.  The Sales  Tax
\n Officer as also the High Court of Bombay has held that the ”
\n person to whom he has sold the goods ” in s. 10(b) means ” a
\n registered  dealer  to whom he has sold the goods “.  It  is
\n contended before us on behalf of the appellant-dealers\t that
\n the word ” a person ” is wide enough to include a registered
\n dealer and an unregistered dealer.  It is urged that the use
\n of  the  word\tit  a  person ” instead\t of  the  words\t ”  a
\n registered  dealer  ”\tis deliberate and  that\t it  was  the
\n intention  of\tthe  Legislature to levy purchase  tax\ton  a
\n person who has given such certificate under s. 8(b) only  if
\n the  goods were not ‘despatched outside the State of  Bombay
\n within\t the prescribed period by anybody.  It\tis  therefore
\n contended that ” a person ” in s. 8(b) should be interpreted
\n to  include  a registered dealer or anybody  else.   We  are
\n unable\t to  agree.   A close examination of  ss.  8  and  10
\n justifies the conclusion that the Legislature was anxious to
\n secure\t that  the declaration as regards  intention  of  the
\n goods being despatched outside the State of Bombay should be
\n carried  out by despatch by ” a registered dealer ” to\t whom
\n he  sells the goods.  If such despatch outside the State  of
\n Bombay is by a person to whom the certifying dealer has sold
\n the goods but who is not a registered dealer the certificate
\n has  not  been\t complied with.\t It will be  in\t our  opinion
\n unreasonable  to think that though the Legislature  insisted
\n that the certificate should declare the goods purchased were
\n intended  11 for being despatched by him or by a  registered
\n dealer\t to  whom  he sells the goods outside  the  State  of
\n Bombay “, the Legislature would be content to accept  actual
\n despatch  outside  the State of Bombay by one who is  not  a
\n registered dealer as sufficient.  Mr. Sanyal contended\t that
\n the certificate
\n 933<\/span>
\n has to declare only an intention and that if ultimately  the
\n actual\t despatch  is  made  by some  person  who  is  not  a
\n registered  dealer,  it  cannot strictly be  said  that  the
\n declaration has not been carried out.\tIt might very well be
\n that  if at the time a declaration of intention is  made  in
\n the  certificate the purchasing dealer had the intention  as
\n stated\t and  ultimately he sells to a person who  is  not  a
\n registered  dealer  for despatch of the  goods\t outside  the
\n State of Bombay, the purchasing dealer may not be liable for
\n having\t made a false declaration “. Even though he  has  not
\n made a false declaration of his intention, the fact  remains
\n that  the intention declared has not been carried out.\t  The
\n scheme\t of  the  Legislature  clearly\tis  that  where\t  the
\n intention as declared has not been carried out purchase  tax
\n should\t be levied.  To hold otherwise would be to  make  the
\n declaration of the intention useless.\n<\/p>\n
 Our  conclusion  therefore  is that the  courts  below\t have
\n rightly  interpreted the words ” a person ” in s.  10(b)  of
\n the Bombay Sales Tax Act as a ” registered dealer ” and that
\n the  purchasing  dealers  have\t rightly  been\tassessed   to
\n purchase tax under s. 10(b).\n<\/p>\n
 In the result, both the appeals are dismissed with costs.\n<\/p>\n
\t     Appeals dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India B. K. Wadeyar vs M\/S. Daulatram Rameshwarlal on 27 September, 1961 Equivalent citations: 1961 AIR 311, 1961 SCR (1) 924 Author: K D Gupta Bench: Gupta, K.C. Das PETITIONER: B. K. WADEYAR Vs. RESPONDENT: M\/S. DAULATRAM RAMESHWARLAL DATE OF JUDGMENT: 27\/09\/1961 BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS DAS, S.K. […]<\/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-18550","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nB. K. Wadeyar vs M\/S. 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