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TMI Blog1960 (11) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction is a sale or purchase". Thus a specific transaction has to be referred to the Collector for his decision. The appellants in their application were not sufficiently specific as regards this question, but gave a specific instance of a transaction which the Collector has investigated and of which he has determined the nature. In the circumstances of this case, we find it possible to hold that the appellants' application to the Collector did not suffer from any infirmity on account of the manner in which it was worded; no such infirmity has been pleaded by either party. 2.. Nanalal Karsandas had a brick factory for which he required 30 wagons of coal. The distribution of coal was controlled by the Ministry of Production of the Government of India under the Colliery Control Order of 1945, which was made in exercise of the powers of the Central Government under sub-rule (2) of rule 81 of the Defence of India Rules. Clauses 2, 4, 6, 8, 9 and 12-E of the said Order have been set out in our decision in Messrs United Coal Co. v. The State of Bombay 6 S.T.D. 37. Clause 12-E of the said Order reads as follows: "12-E. No person shall acquire or purchase or agree to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration under the said Act. (3) Whether the supply of coal by the colliery to applicants and applicants to the consumer constituted two separate sales one by the colliery to the applicants and the other by the latter to the consumer or is a direct sale between the colliery and the consumer." All these questions were decided against them by the Collector. It was held by him that the most important feature of the transaction was that there had been no privity of contract between the colliery and Nanalal, and in his opinion the provisions of the Colliery Control Order, 1945, should not be taken "too literally". He relied on the long- standing practice whereby the consumers of coal in this State used to obtain coal through middlemen, a system not intended to be destroyed by the Colliery Control Order; this according to the Collector was shown by the fact that a duplicate copy of the permit was endorsed to the middleman by the Coal Controller. The Collector held that under the authority of such duplicate copy of the permit, the middleman "acts as a principal in placing order with the colliery". According to him a separate mention of the middleman's commission in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the colliery to them and accounts written accordingly and (2) why the railway receipt was also sent to them. We observed in that case, "the provisions of the Colliery Control Order of 1945 appear to us to override other considerations, and it is clear that that order would not permit the applicants to sell coal to the Kathiawar Coal Distributing Co. as vendees...............Questions as to between which party there was privity of contract or in which party there was the right to sue will not, therefore, in the circumstances of this case, be determinative of the question before us." 4.. In the present case the appellants were undoubtedly the purchasing agents for Nanalal Karsandas. As they also undertook to pay the bill of the colliery which was sent to them, apparently under an existing arrangement or understanding, we think that they may also perhaps be regarded as del credere agents for the colliery. The learned Advocate-General for the State contended that the fact that the appellants were to pay interest to the colliery at 12 per cent. per annum was significant as showing that the appellants were not mere agents. In our opinion, this fact does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajinder Narain & Co., with him), for the respondents. JUDGMENT The Judgment of the Court was delivered by HIDAYATULLAH, J.-The State of Bombay has appealed to this Court with special leave, against an order of the Sales Tax Tribunal, Bombay, dated December 6, 1957, by which the Tribunal allowing the appeal before it, set aside an order of the Collector of Sales Tax passed under section 27 of the Bombay Sales Tax Act, 1953. The respondents, Ratilal Vadilal & Bros., are commission agents doing business as clearing and transport contractors. On June 25, 1954, they applied to the Collector of Sales Tax, Bombay, under sections 27(a), (b) and (c) of the Act describing the nature of their business, citing one instance thereof, for determination of the question whether they could be called "dealers" within the Act. The Collector by his order held that they were dealers, and were required to register them- selves under the Act. On appeal, the Tribunal held otherwise, and hence this appeal by the State of Bombay, It appears that no action was taken to ask for a reference to the High Court of Bombay under section 34(1) read with sections 30(1) and (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arry on the business of selling goods in the State of Bombay. The short question in this case, therefore, was whether the respondents were carrying on such a business in respect of coal. The scheme of the Control Order shows that no sale of coal could take place except to a person holding a certificate. A sale otherwise was in contravention of the Control Order. The certificate which has been produced in the case, though made out in the name of the respondents, shows the consumer as the consignee. It is thus plain that there was no sale by the colliery to the respondents, but directly to Karsandas, though through the agency of the respondents. The respondents also, when they made out the bill to Karsandas, mentioned that he was the consignee, and that they were only charging their "middlemen" commission. In these circumstances, it is difficult to hold that the colliery sold coal to the respondents, and that they, in turn, sold it to Karsandas. There were no two sales involved; there was only one sale, and that was by the colliery to the consumer. The respondents never became owners by purchase from the colliery, because the colliery would not have sold coal to them, nor cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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