TMI Blog1961 (7) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether the words sale for delivery outside Uttar Pradesh' mean that title would not pass until delivery is taken outside the State of Uttar Pradesh? Question 3.-Whether rebate would be admissible when there are two contracts in respect of the same goods, one between the mills and the party residing in the State of Uttar Pradesh and the other between that party and a party residing outside the State of Uttar Pradesh, and goods are despatched outside the State on some instructions from the parties which had not entered into a contract with the mills despatching the goods?" The statement of the case and the order passed by the Judge (Revisions) on the revision application show that the assessee, Messrs Modi Food Products Co., Ltd., Modi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not satisfied in view of the material placed before the Judge (Revisions). We, consequently, consider that the following two questions appropriately bring out the questions of law which arise out of the revisional order of the Judge (Revisions). Question 1.-Whether the sales, on the proceeds of which rebate is claimed by the assessee under section 5 of the U.P. Sales Tax Act, were for delivery outside Uttar Pradesh; and Question 2.-Whether the goods in respect of the sales mentioned in question 1 were actually delivered outside Uttar Pradesh? In order to answer these two questions, we have to take into account all the findings of fact which were recorded by the Judge (Revisions) in his revisional order and which have been included i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ually effected within Uttar Pradesh when the railway receipts were handed over to the purchaser of the oil, Messrs Krishna Kumar Om Prakash. Further, the correspondence between the parties has been taken into account, disclosing the various circumstances from which an inference has to be drawn whether the sales were for delivery within or outside Uttar Pradesh. In these circumstances, the view expressed by us in that earlier case cannot automatically govern this case. In this case, so far as the second question is concerned, learned counsel for the assessee has drawn our attention to the view expressed by Venkatarama Ayyar, J., in his minority judgment in the case of the Bengal Immunity Company Limited v. The State of Bihar and Others[195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs Krishna Kumar Om Prakash acknowledged the receipt of two earlier letters sent by the assessee company wherein the assessee company had agreed to pay one per cent. commission to them. Messrs Krishna Kumar Om Prakash then proceeded to confirm their telephonic conversation which had taken place a day earlier wherein the assessee had offered to sell the standard mustard oil at the rate of Rs. 55 per maund in tank wagons F.O.R. Modinagar. The revisional order further quotes the three subsequent telegrams, two of them dated 12th May, 1947, and the third dated 26th May, 1947, in which there was mention of sale of certain wagons of oil. The Judge (Revisions), after quoting from these documents, proceeded to find that Messrs Krishna Kumar Om Prak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r examining further evidence, has also proceeded to find that, according to. the terms of agreement about these sales, after the goods were loaded in wagons and railway receipts were prepared, they were despatched to Messrs Krishna Kumar Om Prakash at Kanpur after being endorsed in their favour, though the goods were originally booked to "self" by the assessee. The payment of the price of the goods also took place at Kanpur. All these terms of the contract indicate that according to the agreement of sale, the property in the goods was to pass to Messrs Krishna Kumar Om Prakash at Modinagar after the goods had been loaded in wagons. Thereafter, of course the goods could be despatched to any destination indicated by them in the despatch ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods were at Modinagar clearly means that the sale as such was only for delivery at Modinagar while the subsequent despatch instructions constituted separate arrangement to suit the convenience of Messrs Krishna Kumar Om Prakash and were not part of the sale contract itself. It would thus appear that, on the material which was available before the Judge (Revisions), the correct finding should have been that the assessee had failed to show that the sales of those goods, in respect of which rebate was being claimed under section 5 of the U.P. Sales Tax Act, were for delievery outside Uttar Pradesh, so that the first question has to be answered against the assessee. We answer it accordingly. In view of this answer to the first question, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
