{"id":96030,"date":"1959-04-21T00:00:00","date_gmt":"1959-04-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-commissioner-of-vs-husenali-adamji-and-co-on-21-april-1959-2"},"modified":"2017-10-31T01:25:18","modified_gmt":"2017-10-30T19:55:18","slug":"the-commissioner-of-vs-husenali-adamji-and-co-on-21-april-1959-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-commissioner-of-vs-husenali-adamji-and-co-on-21-april-1959-2","title":{"rendered":"The Commissioner Of … vs Husenali Adamji And Co on 21 April, 1959"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Commissioner Of … vs Husenali Adamji And Co on 21 April, 1959<\/div>\n
Equivalent citations: 1959 AIR 887, \t\t 1959 SCR Supl. (2) 702<\/div>\n
Author: S R Das<\/div>\n
Bench: Das, Sudhi Ranjan (Cj)<\/div>\n
           PETITIONER:\nTHE COMMISSIONER OF SALES-TAX,EASTERN DIVISION, NAGPUR\n\n\tVs.\n\nRESPONDENT:\nHUSENALI ADAMJI AND CO.\n\nDATE OF JUDGMENT:\n21\/04\/1959\n\nBENCH:\nDAS, SUDHI RANJAN (CJ)\nBENCH:\nDAS, SUDHI RANJAN (CJ)\nBHAGWATI, NATWARLAL H.\nHIDAYATULLAH, M.\n\nCITATION:\n 1959 AIR  887\t\t  1959 SCR  Supl. (2) 702\n CITATOR INFO :\n R\t    1963 SC1207\t (40)\n RF\t    1970 SC1756\t (10)\n D\t    1976 SC 410\t (13)\n RF\t    1977 SC 879\t (24)\n E&R\t    1990 SC1753\t (14)\n\n\nACT:\nSales Tax-Contract of sale-Construction-Unascertained goods-\nLevy  of tax on goods sent by rail-Place where\tproperty  in\ngoods Passes-Place of appropriation on delivery-Indian\tSale\nof  Goods  Act, 1930 (III of 1930), ss. 4, 18, 23,  33,\t 39-\nCentral\t Provinces and Berar Sales Tax Act, 1947 (C.   P.  &\nBerar XXI of 1947), S. 2(g), Explanation II.\n\n\n\nHEADNOTE:\nThe  respondent\t company was a dealer  in  matchwood  called\nsawar  \" and his place of business was situate in Chanda  in\nthe  erstwhile Central Provinces.  Pursuant to an  agreement\nbetween\t the  respondent  and a match  factory,\t the  former\nloaded\tdiverse\t quantities  of \" sawar \"  logs\t on  railway\nwagons and despatched the same by rail from Chanda and other\nrailway\t stations in the Central Provinces to  Ambernath,  a\ntown  in the erstwhile Province of Bombay.  Under cl.  4  Of\nthe  agreement the goods to be supplied under  the  contract\nshall  be despatched by the contractor from certain  railway\nstations within the Central Provinces, while cl. 2  reserved\nthe  right of the consignee to examine the goods on  arrival\nat.   Ambernath and to reject the same if they, were  found,\nin  the opinion of the factory manager, not to conform\twith\nthe specifications.  Clause 6 provided that the goods  shall\nbe  measured under the supervision of the  factory's  repre-\nsentative, the decision of the factory manager at  Ambernath\nbeing binding on the contractor, and-by cl. 7 the prices  of\nthe  goods  shall be \" F. O.R. Ambernath \".  The  course  of\ndealings between the parties was that on arrival of the logs\nat  Ambernath  the logs were inspected and measured  by\t the\nfactory\t manager  and the prices, calculated at\t the  agreed\nrates,\twere paid to the respondent's agent at Bombay.\t The\nquestion  was as to when and where the property in the\tlogs\npassed from the respondent to the consignee and whether\t the\nrespondent was liable to pay sales tax under the  provisions\nof the Central Provinces and Berar Sales Tax Act, 1947.\t  At\nthe date when the agreement was entered into, the logs\twere\nunascertained  goods.\tThere was also no evidence  that  at\nthat  date the particular logs delivered thereunder were  in\nthe  Central  Provinces in the shape of logs  at  all.\t The\nsales tax department levied the tax on the respondent on the\ngrounds,  inter\t alia,\tthat (1) the property  in  the\tlogs\npassed from the respondent to the factory consignee under S.\n23 Of the Indian Sale of Goods Act, 1930, when the logs were\nloaded in the wagons at railway stations within the  Central\nProvinces and the railway\n703\nreceipts taken in the name of the factory were forwarded  to\nthe  latter, and that (2) in any case, as the logs  were  in\nthe Central Provinces at the date when the contract for sale\nwas made, the transfer in them must be deemed to have  taken\nplace  there under Explanation II to S. 2(g) Of the  Central\nProvinces and Berar Sales Tax Act, 1947.\nHeld : (1) that on a proper construction of the contract  as\na whole the intention of the parties was that the respondent\nwould  send the logs by rail from the different stations  in\nthe Central Provinces to Ambernath where the factory manager\nwould inspect, measure and accept the same if in his opinion\nthey were of the description and quality agreed upon.  Conse-\nquently, as the respondent sent the logs and left it to\t the\nfactory to appropriate to the contract such of them as\tthey\naccepted  as  of  contract  quality  and  description,\t the\nproperty  in the logs did not pass to the buyer by the\tmere\ndelivery  to  the railway for carriage but  passed  only  at\nAmbernath  when\t the logs were appropriated by\tthe  factory\nwith the assent of the seller within the meaning of S. 23 of\nthe Indian Sale of Goods Act, 1930.\n(2)  that Explanation II to s. 2(g) of the Central Provinces\nJUDGMENT:\n<\/pre>\n
because under the Explanation the goods, in respect of which
\nthe  contract  of  sale is made, must, at the  date  of\t the
\ncontract  be in existence in the Central Provinces, that  is
\nto  say, that the goods must at the date of the contract  be
\nthere  in the form in which they are agreed to be  sold\t and
\nthere was no evidence, in the present case, for this.\n<\/p>\n
&
\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 13 of 1958.
\nAppeal\tby special leave from the judgment and\torder  dated
\nJune  29,  1954, of the former Nagpur High  Court  in  Misc.
\nCivil Case No. 219 of 1952.\n<\/p>\n
R.   Ganapathy Iyer and D. Gupta, for the appellant.
\nM.   C. Setalvad, Attorney-General for India, K. G. Chondke,
\nJ. B. Dadachanji and K. K. Raizada, for the respondents.
\nI.   N.\t  Shroff,  for\tthe  Intervener\t (State\t of   Madhya
\nPradesh).\n<\/p>\n
1959.  April 21.  The Judgment of the Court was delivered by
\nDAS,  C. J.-This is an appeal by special leave, against\t the
\norder  of the High Court of Judicature at Nagpur dated\tJune
\n29, 1954, answering against the
\n704<\/span>
\nappellant  certain questions referred to it by the Board  of
\nRevenue\t under\ts. 23(1) of the Central\t Provinces  &  Berar
\nSales Tax Act, 1947 (hereinafter referred to as “the  Act”).
\nThe  reference arose out of an order of assessment  made  on
\nthe respondent for’ payment of sales tax for the period June
\n1, 1947, to November 12, 1947, on a taxable turnover of\t Rs.
\n30,067-9-0.\n<\/p>\n
The  facts leading up to the present -appeal may shortly  be
\nstated as follows.  The respondent deals in matchwood called
\n”  sawar ” (Bombay- Malabaricum).  His place of business  is
\nsituate\t at Chanda in the erstwhile Central  Provinces.\t  In
\nJanuary\t 1948 the respondent entered into an agreement\twith
\nthe  Western India Match Co. Ltd., which is popularly  known
\nand  will  hereinafter be referred to as ” WIMCO ”  for\t the
\nsupply\tof  a minimum quantity of 2,500 tons of\t sawar\tlogs
\nduring\tthe season 1947-48.  This agreement is evidenced  by
\nWIMCO’s\t  letter  dated\t January  7,  1948,  accepting\t and
\nconfirming  it.\t Unfortunately that letter, although a\tpart
\nof  the record, has not been printed in the Paper Book.\t  It
\nis  common ground, however, that the agreement of  sale\t was
\nsubject to the conditions appearing in a formal contract  in
\nwriting\t dated\tMarch 2, 1945, which is said  to  have\tbeen
\nrenewed\t from  year to year.  It appears that prior  to\t the
\nexecution  of the last mentioned contract there was  another
\ncontract  between the respondent and WIMCO which  was  dated
\nOctober 18, 1940.  Evidently that contract was superseded by
\nthe  later  one of March 2, 1945, the terms  and  conditions
\nwhereof were renewed year after year.  It is, therefore, not
\neasily intelligible why both the contracts were filed before
\nthe  Sales  Tax authorities and actually  mentioned  in\t the
\nfirst question that was referred to the Hight Court.
\nBoth  the contracts have been printed in the Paper Book\t and
\nreference has been made to some of the terms of both of them
\nin  the course of the arguments before us.  The\t reason\t for
\nreferring   to\tthe  terms  of\tthe  ,earlier  contract\t  is
\npresumably  to emphasise the variation in the language\tused
\nin  the\t corresponding provisions of the later\tcontract  as
\nindicative  of\ta definite change in the  intention  of\t the
\nparties.  It is, therefore,
\n705<\/span>
\nas  well  that the relevant clauses of\tboth  the  contracts
\nshould be set out here for properly following the  arguments
\nadvanced on both sides.\n<\/p>\n
Reference  may first be made to the earlier  contract  dated
\nOctober\t 18,  1940.  Clause I sets out\tthe  specifications,
\nthat is to say, the dimensions and quality of the logs to be
\ndelivered  under the contract which need not  be  reproduced
\nhere.  The other material clauses, omitting the\t unnecessary
\nportions thereof, may now be set out:-\n<\/p>\n
”  2.  The Contractor agrees that any logs supplied  by\t him
\nwhich do not conform with the specification herein shall not
\nbe accepted or paid for by the company and he the contractor
\nundertakes to remove all logs so rejected at his own expense
\nfrom  the Company’s premises within fifteen days after\tdate
\nof  notice to him or his representative from the Company  so
\nto  remove  such logs.\tShould the Contractor fail  to\ti.e.
\nmove such logs from the Company’s premises within the period
\nstipulated  it is hereby mutually agreed that  such  failure
\nshall  be  construed as being the  Contractor’s\t consent  to
\nrelinquish all claims whatsoever to such rejected logs,\t and
\nthe  Contractor agrees to such logs thereupon  becoming\t the
\nproperty  of the company and that the contractor shall\thave
\nno  claim whatsoever upon the company for payment either  in
\nrespect\t of  the  supply by him of  such  rejected  logs  or
\narising out of the disposal by the Company of such logs.”
\n”  3. The said goods shall be delivered at Ambernath in\t the
\nquantities and at the times hereinafter mentioned, i.e.,
\n”  4. The goods to be supplied under this Contract shall  be
\ndespatched  by the Contractor from Railway Stations  on\t the
\nB.N.R. and G.I.P.R. Sections between the following  Stations
\n:\n<\/p>\n
”  5.  Measurements:-The goods under this contract shall  be
\nmeasured under the supervision of the
\n89<\/span>
\n706<\/span>
\nCompany’s  Factory  Manager at Ambernath on arrival  of\t the
\ngoods at the Factory in accordance with the
\nfollowing stipulations:-\n<\/p>\n
The Contractor\tagrees\tto…\t accept the decision of\t the
\nCompany’s   Factory  Manager  at  Ambernath  as\t final\t and
\nbinding.”\n<\/p>\n
The  prices of the logs to be supplied are set out in cl.  6
\nof the contract as “F.O.R. Ambernath “.\n<\/p>\n
We  now\t pass  on to the later contract of  March  2,  1945.
\nClause\t1  sets\t out the specifications of the\tlogs  to  be
\nsupplied under the contract in exactly the same language  as
\nin  el.\t  I  of the earlier contract.\tThe  other  material
\nclauses,  again\t omitting the unnecessary portions,  are  as
\nfollows:-\n<\/p>\n
”  2.  The contractor agrees that any logs supplied  by\t him
\nwhich, on arrival at Ambernath, are found in the opinion  of
\nthe  Company’s\tFactory\t Manager not  to  conform  with\t the
\nspecifications\therein shall not be accepted or paid for  by
\nthe  Company,  notwithstanding the fact that such  logs\t may
\nhave  been accepted by the Company’s representatives  before
\nbeing railed to Ambernath.”\n<\/p>\n
It  may be mentioned here that Ambernath is a place  situate
\nin the erstwhile province of Bombay and outside the  Central
\nProvinces.\n<\/p>\n
”  4. The goods to be supplied under this contract shall  be
\ndespatched by the Contractor from railway stations on the B.
\nN.  Railway,  N. S. Railway and G. 1.  P.  Railway  sections
\nbetween the following stations.\n<\/p>\n
It  is\tunnecessary  to set out the names  of  the  stations
\nwhich, it may, however, be stated, are all in the  erstwhile
\nCentral Provinces.  Clause 6 provides:\n<\/p>\n
“6.\tMeasurements:-\n<\/p>\n
The  goods under this contract shall be measured  under\t the
\nsupervision  of the Company’s representative  in  accordance
\nwith the following stipulations:-\n<\/p>\n
707<\/span><\/p>\n
The  contractor\t agrees\t to  accept  the  decision  of\t the
\nCompany’s   Factory  Manager  at  Ambernath  as\t final\t and
\nbinding.”\n<\/p>\n
The prices of the logs to be supplied under the contract are
\nspecified  as ” F.O.R. Ambernath ” in cl. 7 which  concludes
\nwith the following sentence:\n<\/p>\n
” The money so due and payable shall be paid by the  Company
\nto  the Contractor when the measurements of the\t goods\thave
\nbeen  completed\t under\tthe  supervision  of  the  Company’s
\nrepresentative.”\n<\/p>\n
Pursuant to the agreement between the respondent and  WIMCO,
\nthe  former  loaded  diverse quantities\t of  Sawar  logs  on
\nrailway\t wagons\t and  despatched the same  by  railway\tfrom
\nChanda or other railway stations in the Central Provinces to
\nAmbernath  in the erstwhile province of Bombay\tand  outside
\nthe  Central  Provinces.  It is not disputed  that  on\tmany
\noccasions  the\trepresentative of WIMCO was present  at\t the
\nrailway\t station  when the logs were sorted out\t and  loaded
\ninto the wagons.  The statement of the case submitted  along
\nwith  the reference under s. 23(1) of the Act is  silent  on
\nthe  point as to whether the railway receipts were made\t out
\nwith WIMCO as the consignee; but it is abundantly clear from
\nthe order of the Assistant Commissioner, Sales Tax, which is
\npart of the record -and it has not been disputed before\t us-
\nthat  ”\t the railway receipt which is a\t document  of  title
\naccording  to  s. 2(4) of the Indian Sale of  Goods  Act  is
\ntaken in the name of the consignee.” The course of  dealings
\nbetween\t the parties also appears to be that, on arrival  of
\nthe  logs at Ambernath, the consignee buyer WIMCO, paid\t the
\nrailway freight and the logs were inspected and measured  by
\nWIMCO’s\t Factory Manager and the prices, calculated  at\t the
\nagreed rates, were paid to the respondent’s agent at Bombay.
\nThere is no doubt that the price of the logs supplied by the
\nrespondent to WIMCO under the agreement and accepted by\t the
\nlatter during the period in question amounted to Rs. 30,067-
\n9-0.  The question for our
\n708<\/span>
\ndecision  is  whether the respondent is liable\tto  pay\t any
\nsales tax under the Act.\n<\/p>\n
It will be convenient at this stage to refer to the relevant
\nprovisions  of\tlaw applicable to the facts  of\t this  case.
\nSection 4 of that Act is the charging section.\tAccording to
\nthis  section safes tax is payable ” on all  sales  effected
\nafter  the commencement of the Act.” ” Sale ” is defined  by
\ns.  2(g) of the Act.  At the relevant period, that  section,
\nomitting  Explanation  1,  which is  not  material  for\t our
\npurpose, ran as follows:-\n<\/p>\n
”  ‘Sale’  with all its grammatical variations\tand  cognate
\nexpressions means any transfer of property in goods for cash
\nor   deferred  payment\tor  other  valuable   consideration,
\nincluding a transfer of property in goods made in course  of
\nthe  execution\tof  a  contract,  but  does  not  include  a
\nmortgage, hypothecation, charge or pledge.
\n …………………………………………………
\nExplanation II:-Notwithstanding anything to the contrary  in
\nthe  Indian Sale of Goods Act, 1930, the sale of  any  goods
\nwhich are actually in the Central Provinces and Berar at the
\ntime  when  the contract of sale as defined in that  Act  in
\nrespect\t thereof is made, shall, wherever the-said  contract
\nof  sale is made, be deemed for the purpose of this  Act  to
\nhave taken place in the Central Provinces and Berar.”
\nThe  Act  being\t a  piece  of  legislation  enacted  by\t the
\nlegislature  of the erstwhile Province of Central  Provinces
\nand  Berar, its operation is limited to the  territories  of
\nthat province.\tTherefore, the question arises: Does the sum
\nof  Rs. 30,067-9-0 represent the prices of logs sold by\t the
\nrespondent  within  the Central Provinces ? Sale  being\t the
\ntransfer of property in the goods agreed to be sold, we have
\nto  enquire if the property in the goods which\tfetched\t the
\nsale proceeds on which the sales tax is sought to be  levied
\nwas transferred in the Central Provinces as contemplated  in
\nthe  main definition or if those goods were actually in\t the
\nCentral Provinces at the time when the contract for sale  as
\ndefined in the Sale of Goods Act in respect thereof was made
\nas required by Explanation II set
\n709<\/span>
\nout above.  This takes us to the Sale of Goods Act, 1930.
\nSection 4 of the Sale of Goods Act is expressed in the words
\nfollowing:-\n<\/p>\n
“4.  Sale and agreement to sell:-(I) A contract of  sale  of
\ngoods  is a contract whereby the seller transfers or  agrees
\nto transfer the property in goods to the buyer for a  price.
\nThere  may be a contract of sale between one part-owner\t and
\nanother.\n<\/p>\n
(2)  A contract of sale may be absolute or conditional.
\n(3)  Where  under  a contract of sale the  property  in\t the
\ngoods  is  transferred\tfrom the seller to  the\t buyer,\t the
\ncontract  is  called a sale, but where the transfer  of\t the
\nproperty  in the goods is to take place at a future time  or
\nsubject\t to some condition thereafter to be  fulfilled,\t the
\ncontract is called an agreement to sell.\n<\/p>\n
(4)  An\t agreement  to\tsell becomes a sale  when  the\ttime
\nelapses or the conditions are fulfilled subject to which the
\nproperty in the goods is to be transferred.” There can be no
\ndoubt  that  the agreement pursuant to which the  logs\twere
\nsupplied by the respondent to WIMCO was an agreement to sell
\nwithin\tthe meaning of the above section.  There is also  no
\ncontroversy  between the parties that at the date when\tthis
\nagreement  was\tentered into, the  logs\t were  unascertained
\ngoods.\t The  question is: When did that agreement  to\tsell
\nunascertained  goods become a sale and where did  such\tsale
\ntake place ? In other words, when and where did the property
\nin those goods pass from the respondent to WIMCO ?
\nThe transfer of property in the goods as between the  seller
\nand  buyer  is dealt with in Ch.  III of the Sale  of  Goods
\nAct.  Section 18 of the Sale of Goods Act runs
\nthus :\n<\/p>\n
” 18.  Goods must be ascertained:-Where there is a  contract
\nfor  the  sale of unascertained goods, no  property  in\t the
\ngoods is transferred to the buyer unless and until the goods
\nare ascertained.”\n<\/p>\n
Passing over ss. 19 to 22 which (except as to sub-s. (3)  of
\ns. 19) apparently apply to contracts for the sale of
\n710<\/span>
\nspecific  or  ascertained  goods, we come  to  s.  23  which
\nprovides :-\n<\/p>\n
”  23.\tSale of unascertained goods and appropriation  :-(I)
\nWhere  there is a contract for the sale of unascertained  or
\nfuture\tgoods by description and goods of  that\t description
\nand in a deliverable state are unconditionally\tappropriated
\nto the contract, either by the seller with the assent of the
\nbuyer  or  by the buyer with the assent of the\tseller,\t the
\nproperty  in the goods thereupon passes to the buyer.\tSuch
\nassent may be expressed or implied, and may be given  either
\nbefore or after the appropriation is made.
\n(2)  Delivery\tto  carrier:-Where,  in\t pursuance  of\t the
\ncontract, the seller delivers the goods to the buyer or to a
\ncarrier or other bailee (whether named by the buyer or\tnot)
\nfor  the purpose of transmission to the buyer, and does\t not
\nreserve\t the  right  of\t disposal,  he\tis  deemed  to\thave
\nunconditionally appropriated the goods to the contract.”
\nReference  may next be made to s. 33 and s. 39(1).   Section
\n33 says:-\n<\/p>\n
”  33.\t Delivery :-Delivery of goods sold may\tbe  made  by
\ndoing anything which the parties agreed shall be treated  as
\ndelivery or which has the effect of putting the goods in the
\npossession of the buyer or of any person authorised to\thold
\nthem on his behalf”\n<\/p>\n
Section 39(1) runs as follows:-\n<\/p>\n
” 39.  Delivery to carrier or wharfinger:-\n<\/p>\n
(1)  Where,  in pursuance of a contract of sale, the  seller
\nis  authorised or required to send the goods to\t the  buyer,
\ndelivery  of  the goods to a carrier, whether named  by\t the
\nbuyer or not, for the purpose of transmission to the  buyer,
\nor delivery of the goods to wharfinger, for safe custody, is
\nprima  facie  deemed  to be delivery of\t the  goods  to\t the
\nbuyer.”\n<\/p>\n
Keeping\t the provisions of the above quoted sections of\t the
\ntwo  Acts  in  view, we have to decide when  and  where\t the
\nproperty in the logs passed from the respondent to WIMCO.
\nThe  Assistant\tCommissioner  of  Sales\t Tax  assessed\t the
\nrespondent  to\t-a tax of Rs. 939-10-0 and  imposed  on\t the
\nrespondent a penalty of Rs. 100 under s. 25 of
\n711<\/span>
\nthe Act for not having submitted its return in contravention
\nof r. 19 of the Central Provinces and Berar Sales Tax Rules.
\nThe Assistant Commissioner took the view that the loading of
\nthe  logs  into the wagons at railway  stations\t within\t the
\nCentral Provinces and the taking out of the railway receipts
\nin the name of the consignee, WIMCO, and the delivery of the
\nsame to WIMCO, had the effect of putting the latter in\tpos-
\nsession of the goods as laid down in s. 39(1) of the  Indian
\nSale  of Goods Act and he accordingly held that the sale  of
\nthe goods took place at Chanda and other railway stations in
\nthe   Central\tProvinces  and\tthat   the   assessee\twas,
\nconsequently, liable to pay the sales tax under the Act.
\nThe  respondent\t preferred  an\tappeal\tto  the\t Sales\t Tax
\nCommissioner  who upheld the Assistant Commissioner’s  order
\nof  assessment as well as of the penalty.  He  laid  greater
\nemphasis  on Explanation II to s. 2(g) of the Act  as  over-
\nriding\tthe  provisions of the Indian Sale of Goods  Act  in
\nrespect\t of  the transfer of property in the logs  and\theld
\nthat as the’ logs were in the Central Provinces at the\tdate
\nwhen  the contract for sale was made, the transfer  in\tthem
\nmust  be  deemed  to  have  taken  place  there\t under\tthat
\nExplanation.  He also agreed with the Assistant Commissioner
\nthat the delivery of the logs to the railway company and the
\nsending\t of  the documents of title to WIMCO had,  under  s.
\n39(1) of the Sale of Goods Act, the effect of putting  WIMCO
\nin possession of the logs.\n<\/p>\n
The  respondent\t preferred  what in form appeared  to  be  a
\nsecond\tappeal to the Board of Revenue.\t As, however,  there
\ncould  be  no second appeal under s. 22(4) of the  Act,\t the
\nBoard treated the memorandum of appeal as an application for
\nrevision under sub-s. 5 of s. 22 of the Act read with r. 57.
\nBoth  the members of the, Board of Revenue came to the\tsame
\nconclusion, namely, that the sales were liable to assessment
\nunder  the  Act,  but the reasonings adopted  by  them\twere
\nsomewhat different.  Shri Shrivastava, a member of the Board
\nof Revenue, took the view that as soon as logs answering the
\ndescription  agreed  upon were brought to  the\trailhead  at
\nChanda and sorted out and
\n712<\/span>
\nloaded\tin  the\t wagons\t in  the  presence  of\tWIMCO’s\t re-
\npresentatives,\tthere  was an implied contract\tof  sale  of
\nspecific and ascertained goods, as evidenced by the  conduct
\nof  parties  and  the property in  each\t consignment  passed
\nimmediately  from  the respondent to WIMCO  at\tthe  railway
\nstation\t  in  the  Central  Provinces  where  such   implied
\ncontracts were made.  The Chairman of the Board of  Revenue,
\nhowever,  took the view that the contract of sale  was\tmade
\noutside\t the Central Provinces, namely, in Bombay and  that,
\nunder the Sale of Goods Act, the property in the logs passed
\nto  WIMCO in Ambernath outside the province but that as\t the
\nlogs  were in the Central Provinces, either in the  form  of
\nlogs  or  in the form immediately preceding,  namely,  trees
\nstanding  on the land which had been impliedly agreed to  be
\nsevered from the land before actual sale, Explanation II  to
\ns.  2(g) of the Act applied and the sale must,\taccordingly,\n<\/p>\n
-be deemed to have taken place within the Central  Provinces
\nand, must, therefore, be liable to sales tax under the Act.
\nThe Board rejected the application but remitted the penalty.
\nOn  the application of the respondent under s. 23(1) of\t the
\nAct,  the  Board of Revenue submitted to the  High  Court  a
\nstatement of case raising the following questions:-
\n” (1) Did the agreements of the kind on record the one dated
\n18-10-40  and the other dated 2-3-45constitute contracts  of
\nsale-either  express  or implied -in respect of\t sawar\twood
\nsupplied by the assessee to WIMCO?\n<\/p>\n
(2)  If the answer to question No. I be in the\taffirmative,
\ndid the contracts relate to specific or ascertained goods or
\nto unascertained or future goods?\n<\/p>\n
(3)  Did  the  property\t in  the  goods\t pass  to  WIMCO  by
\nconsignment simpliciter at different railway stations within
\nthis  province, or did it pass at Ambernath when  the  goods
\nwere approved as provided in the contract ?
\n(4)  Was reliance on the definition of I goods’ contained in
\ns.  2(7)  of  the Sale of Goods Act  in\t order\tin  applying
\nExplanation II to s. 2(g) of the Sales Tax
\n713<\/span>
\nAct in cases, where the goods sold were in the form of trees
\nstanding  on  the land in this province at the time  of\t the
\ncontract of sale?”\n<\/p>\n
In its judgment dated June 29, 1954, the High Court took the
\nview  that the sales in question did not take place  in\t the
\nCentral\t Provinces  and Berar and consequently\twere  not  ”
\nsales  ” within the meaning of the Act and,  therefore,\t not
\nliable\tto tax.\t It gave the following answers to the  above
\nquestions:-\n<\/p>\n
” Our answers to the questions referred for decision are :-
\n(1)  The  agreement in question was an express agreement  to
\nsell sawar logs to WIMCO.  There was neither an express\t nor
\nan implied contract each time goods were railed.
\n(2)  The-contract was not for delivery of specific goods but
\nof unascertained or future goods by description.
\n(3)  The property in the goods did not pass to the buyer  by
\nthe  delivery  to the railway for carriage.   It  passed  at
\nAmbernath where the goods were appropriated by the buyer  to
\nthe contract with the assent of the seller.
\n(4)  The  word ‘ goods ‘ in the definition of I sale in\t the
\nSales\tTax  Act  must\tbe  interpreted\t according  to\t its
\ndefinition  in s. 2(d) of the Act and not according  to\t the
\ndefinition  in\ts.  2(7)  of the Sale  of  Goods  Act.\t The
\nstanding sawar trees are not goods within the meaning of the
\nformer Act.”\n<\/p>\n
The  effect of the answers being to nullify  the  assessment
\norder,\tthe Commissioner of Sales Tax has come up on  appeal
\nbefore us after obtaining special leave of this Court.
\nThe  answers  to  the  first two  questions  have  not\tbeen
\nquestioned before us.  The main arguments have centred round
\nthe  answers to questions 3 and 4. The answer to question  3
\nturned on the construction placed by the High Court on s. 23
\nof  the\t Sale of Goods Act.  After quoting s. 23,  the\tHigh
\nCourt observed as follows:-\n<\/p>\n
”  After  sorting the logs with the assent  of\tthe  buyer’s
\nrepresentative, the applicant appropriated the
\n90<\/span>
\n714<\/span>
\nlogs  to  the  contract\t by  railing  them  to\tthe  buyer’s
\ndestination  at\t Ambernath.  The statement of  the  case  is
\nsilent\ton the point whether the railway receipts were\tmade
\nout  with the Company as the consignee.\t The assent  of\t the
\nrepresentative\twas provisional and was not binding  on\t the
\nCompany.    Under  the\tagreement  it  did  not\t  agree\t  to
\nunconditionally appropriate the logs to the contract as soon
\nas they were delivered to the railway with the assent of its
\nrepresentative for carriage to Ambernath.  It had  expressly
\nreserved  its  right to reject the goods on  examination  at
\nAmbernath.   The  agreement  therefore was  that  the  buyer
\nshould, with the assent of the seller, appropriate the goods
\nto the contract at Ambernath.  The appropriation under s. 23
\nwas  not complete till the goods reached Ambernath and\twere
\nappropriated   by   the\t Company  to  the   contract.\t The
\nappropriation of the goods by the applicant at the railheads
\nwas  conditional  on  their  acceptance\t by  the  buyer\t  at
\nAmbernath.  There is nothing in the statement of the case to
\nshow that the logs were not so appropriated.  Therefore, the
\nproperty in the logs passed to the buyer at Amber nath.”
\nThe learned counsel for the department appearing in  support
\nof  this  appeal contends that property in the\tlogs  passed
\nfrom  the respondents to WIMCO under s. 23 when\t sawar\tlogs
\nwere brought to the railway station and loaded in the  wagon
\nand  the  railway receipts taken in the name of\t WIMCO\twere
\nforwarded  to  the  latter.   There  was  an   unconditional
\nappropriation\tof  the\t goods\tto  the\t contract   by\t the
\nrespondent.  There was, according to learned counsel, assent
\non  the\t part of WIMCO to this appropriation  in  two  ways,
\nnamely,\t (a) expressly given by its representative  who\t was
\npresent\t at the railway station, and (b) impliedly given  by
\nWIMCO  by having agreed in advance that the goods should  be
\ndespatched  by rail from the stations mentioned in cl. 4  of
\nthe  agreement,\t all of which were situate  in\tthe  Central
\nProvinces.\n<\/p>\n
There  is  no  doubt-and indeed it  has\t been  categorically
\nconceded  by  learned counsel for the department  -that\t the
\ncontract   was\t for  sale  of\t unascertained\t goods\t and
\nconsequently the property in them could
\n715<\/span>
\nnot,  under  s.\t 18, pass unless and until  the\t goods\twere
\nascertained.   His contention is that logs of  the  contract
\nquality\t  and\tdescription  having   been   unconditionally
\nappropriated  by  the  respondent to  the  contract  without
\nreserving  to itself any right of disposal and WIMCO  having
\nexpressly  through  its representative or impliedly  by\t the
\nvery  terms of the contract assented to such  appropriation,
\nproperty  in them passed under s. 23 from the respondent  to
\nWIMCO  at the railway stations within the Central  Provinces
\nas soon as the sawar logs were loaded on the wagons and\t the
\nrailway receipts were taken out in the name of WIMCO.  It is
\nsaid  that  so\tfar  as\t the  respondent  is  concerned\t  it
\nunconditionally\t appropriated  the  logs  to  the  contract.
\nSeeing\tthat they were actually accepted by WIMCO  on  their
\narrival at Ambernath it is quite clear that the logs were of
\nthe  contract quality and description.\tThe  only  question,
\naccording  to learned counsel for the department  therefore,
\nis whether there was assent of WIMCO to such  appropriation.
\nIt has been found as a fact that WIMCO’s representative\t was
\nnot  present  on all occasions when sawar logs\tused  to  be
\nloaded on the railway wagons.  There is no evidence that  he
\nwas actually present when these particular sawar logs,\twith
\nthe  sale proceeds of which we are concerned, were put\tinto
\nthe  wagons.   Nor  is there an iota of\t evidence  that\t the
\nrepresentative of WIMCO had any authority to. bind WIMCO  by
\nany assent.  In view of these difficulties, learned  counsel
\nfor the department did not press the case of express  assent
\nof the representative of WIMCO and concentrated on the\tcase
\nof  implied assent.  It is quite clear from the language  of
\ns.  23 itself, that the appropriation may be by\t the  seller
\nwith the assent of the buyer or by the buyer with the assent
\nof the seller, that assent to representation may be  express
\nor implied and that it may be given after the  appropriation
\nor  in advance before such appropriation.   Learned  counsel
\nfor the department lays strong emphasis on the provision  of
\ncl.  4\tin  the\t contract that\tthe  sawar  logs  should  be
\ndespatched by rail from certain stations within the  Central
\nProvinces and contends that delivery by the seller of  sawar
\nlogs of the contract quality and
\n716<\/span>
\ndescription to the railways in terms of the contract without
\nthe  reservation of any right of disposal has the effect  of
\npassing\t the  property\ttherein\t to  WIMCO  at\tthe  railway
\nstations in the Central Provinces under s. 23 as well as  of
\nconstituting delivery of them at the railway stations  under
\nss. 33 and 39(1).  The argument is prima facie sound  unless
\nthere  be some other provision in the contract\tto  negative
\nthis  conclusion,  e. g., that the logs must be\t carried  to
\nAmbernath  and delivered there (See The Badische Anilin\t and
\nSoda Fabrik v. The Basle Chemical Works, Bindschedler  (1)).
\nLearned counsel for the department does not urge that if the
\nmatter\thad  to\t be  decided on the  terms  of\tthe  earlier
\ncontract dated October 18, 1940, he could properly say\tthat
\nthere was nothing in the contract negativing the idea of the
\npassing\t  of  property\tin  the\t logs  within  the   Central
\nProvinces.  The cumulative effect of the provisions of el. 2
\nthat the property in the rejected logs would’ pass to  WIMCO
\nupon the failure of the respondent to remove the same  after
\nrejection,  of\tel. 3 that the goods shall be  delivered  at
\nAmbernath in the presence of WIMCO’s Factory Manager and  of
\nel. 6 providing that the prices will be ” F.O.R. Ambernath ”
\nclearly\t militate against the theory of passing of  property
\nimmediately  on\t the  goods being loaded  into\tthe  wagons.
\nWhile\tnot  contesting\t this,\tlearned\t counsel   for\t the
\ndepartment  urges that there is no such\t contrary  intention
\nindicated  in  the later contract of March  2,\t1945,  which
\nreally\tgoverns\t the  case.  We are  unable-to\taccept\tthis
\ndistinction  as of any substance.  It is true that  in\tthis
\nlater  contract cl. 2 is differently worded and there is  no
\nexpress\t provision  that the goods should  be  delivered  at
\nAmbernath.    There   are,   nevertheless,   several   other
\nprovisions in the later contract indicating that property in
\nthe  logs loaded in the wagon will not pass to\tWIMCO  until
\nafter  the  goods  arrive at Ambernath\tand  are  inspected,
\nmeasured and accepted by WIMCO’s Factory Manager.  Clause  2
\nof  the later contract quite clearly reserves the  right  of
\nWIMCO to examine the goods on arrival and to reject the same
\nif  they are found, in the opinion of its  Factory  Manager,
\nnot to
\n(1)  [1898] A.C. 200,
\n717<\/span>
\nconform with the specifications.  This reservation, which is
\nmade  notwithstanding the fact that the logs may  have\tbeen
\naccepted  by its representative before they were  railed  to
\nAmbernath,  clearly indicates that the so called  acceptance
\nby  the\t representative\t was  not  final  but  was  entirely
\ntentative  and\tsubject to approval of the logs\t by  WIMCO’s
\nFactory\t Manager  at Ambernath after  their  arrival.\tThis
\ncircumstance  certainly\t militates against the\tproperty  in
\nthem having already ‘passed to WIMCO at the railway stations
\nin the Central Provinces.  The provisions of cl. 6 that\t the
\ngoods  shall  be measured under the supervision\t of  WIMCO’s
\nrepresentative,\t the  decision\tof its\tFactory\t Manager  at
\nAmbernath being binding on the respondent and of el. 7\tthat
\nthe  prices  shall  be ” F.O.R. Ambernath  ”  and  shall  be
\npayable\t after\tsuch  measurement of  the  logs\t by  WIMCO’s
\nrepresentative\tfurther\t reinforce the conclusion  that\t the
\nintention  of  the parties was that property  in  the  goods
\nshall  not pass until the logs arrive at Ambernath  and\t are
\nthere  inspected,  measured and accepted by WIMCO.   In\t our
\njudgment  the prima facie case of what might have  been\t the
\nappropriation  of the logs by the respondent by\t loading  on
\nthe wagons logs of the contract quality and description with
\nthe assent of WIMCO given in .advance by the terms of el.  4
\nis effectively displaced by the provisions of cls. 2, 6\t and
\n7  of the later contract which clearly indicate\t a  contrary
\nintention.   On a proper construction of the contract  as  a
\nwhole  the  intention of the parties clearly  was  that\t the
\nrespondent  would send the logs by rail from  the  different
\nstations in the Central Provinces to Ambernath where WIMCO’s
\nFactory\t Manager would inspect, measure and accept the\tsame
\nif  in his opinion they were of the description and  quality
\nagreed\tupon.  In other words the respondent sent  the\tlogs
\nand left it to WIMCO to appropriate to the contract such  of
\nthem   as   they  accepted  as\tof  contract   quality\t and
\ndescription.  The respondent, therefore, gave in advance its
\nassent\tto WIMCO’s appropriation of the goods at  Ambernath.
\nTherefore, the decision of the High Court cannot be assailed
\nbut must be accepted as well-founded in fact and in law.
\nLearned counsel for the department then falls back
\n718<\/span>
\nupon the Argument founded on Explanation- II to s. 2(g)\t and
\n‘argues,  somewhat halfheartedly, that\tnotwithstanding\t the
\nprovisions of the Sale of Goods Act regarding the passing of
\nproperty  in the goods the sale under consideration must  be
\ndeemed,\t in  the light of that Explanation,  to\t have  taken
\nplace  within  the Central Provinces.  The question  of\t the
\nconstitutional\tvalidity of that Explanation was not  raised
\nin  the\t High Court and indeed, in view of the\tdecision  of
\nthis  Court  in Poppatlal Shah v. State of  Madras<\/a>  (1)\t and
\nother’\tcases, cannot now be raised and we must\t proceed  on
\nthe  footing  that  Explanation 11 did\tnot  transgress\t the
\nlegislative competency of the Legislature which enacted\t the
\nsame.  It will be noticed that Explanation II can apply only
\nif the goods ” in respect of ” which the contract of sale is
\nentered into are, at the date of such contract, actually  in
\nthe  Central Provinces.\t Learned counsel for the  department
\nurges that the logs delivered must have been in existence in
\nthe  Central Provinces either in the shape of ‘;logs  or  in
\nthe shape of standing timber.  There is no evidence that  at
\nthe  date  when\t the  agreement\t for  sale  was\t made,\t the
\nparticular  logs  delivered thereunder were in\tthe  Central
\nProvinces in the shape of logs at all.\tLearned counsel says
\nthat, at any rate, they must have been in existence there in
\nthe  shape of standing timber.\tApart from  anything  else,,
\nthe  agreement here was riot ” in respect of ” any  standing
\ntimber\tand  there  was no provision  in  the  agreement  as
\nbetween\t the  respondent  and WIMCO  for  severance  of\t the
\nstanding timber before sale under that agreement.  In  order
\nto attract Explanation II the goods, in respect of which the
\ncontract of sale is made, must, at the date of the  contract
\nbe  in existence in the Central Provinces, that is  to\tsay,
\nthat the goods must at the date of the contract be there  in
\nthe form in which they are agreed to be sold.  There is\t not
\nan  iota of evidence on that point.  In our judgment,  there
\nis no force in this alternative argument.\n<\/p>\n
The result, therefore, is that this appeal is dismissed with
\ncosts.\n<\/p>\n
Appeal dismissed.\n<\/p>\n
(1)  [1953] S.C.R. 677.\n<\/p>\n
719<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Commissioner Of … vs Husenali Adamji And Co on 21 April, 1959 Equivalent citations: 1959 AIR 887, 1959 SCR Supl. (2) 702 Author: S R Das Bench: Das, Sudhi Ranjan (Cj) PETITIONER: THE COMMISSIONER OF SALES-TAX,EASTERN DIVISION, NAGPUR Vs. RESPONDENT: HUSENALI ADAMJI AND CO. DATE OF JUDGMENT: 21\/04\/1959 BENCH: DAS, […]<\/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-96030","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Commissioner Of ... vs Husenali Adamji And Co on 21 April, 1959 - 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-commissioner-of-vs-husenali-adamji-and-co-on-21-april-1959-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Commissioner Of ... vs Husenali Adamji And Co on 21 April, 1959 - 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