TMI Blog1965 (2) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... al for Rajasthan (K.K. Jain and R.N. Sachthey with him), for the appellants. M.D. Bhargava and B.D. Sharma, for the respondent. -------------------------------------------------- The judgment of the Court was delivered by SIKRI, J.- This appeal by certificate of fitness granted by the Rajasthan High Court is directed against its judgment dated May 7, 1963, quashing the order of assessment dated March 5, 1962, made by the Sales Tax Officer, Jodhpur City, in so far as it levied sales tax on the turnover of Rs. 23,92,252-79 nP. The respondent, M/s. Shiv Ratan G. Mohatta, which is a partner- ship firm having its head office at Jodhpur, hereinafter referred to as the assessee, claimed before the Sales Tax Officer that they were not liable to be assessed to sales tax in respect of the above turnover because, firstly, the assessee was not a dealer within section 2(f) of the Rajasthan Sales Tax Act (Rajasthan Act XXIX of 1954) with respect to this turnover, and secondly, because the sales were in the course of import within Article 286(1)(b) of the Constitution. Although the Sales Tax Officer set out the facts of the case relating to the second ground, he deemed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All the railway receipts etc. will be sent by registered post by the suppliers in Pakistan." After this agreement had been entered into, the assessee would send despatch instructions to the Pakistan Corporation. These instructions indicated the name of the buyer-consignee and the destination, and provided that the railway receipt and D/A should be sent by registered post to the consignee. These instructions were sent with a covering letter to the Pakistan Corporation requesting that these instructions be passed on to the Pakistan Factory for necessary action. The Pakistan Corporation would then forward these despatch instructions to the Zeal-Pak Cement Factory. Later, the Pakistan Factory would advise the consignee that they had "consigned to the State Bank of India, Karachi, the particular quantity as per enclosed railway receipt and invoice." The State Bank of India, Karachi, would endorse the railway receipt in favour of the consignee and sent it to him by post. The consignee would take delivery either by presentation of the railway receipt or by giving indemnity bond to the Station Master undertaking to deliver the railway receipt on its receipt. The Sales Tax Officer did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rajasthan Sales Tax Act, and came to the conclusion that the petitioner must be deemed to be a dealer within the said section 2(f). Then it proceeded to deal with the question whether the sales had taken place in the course of import. The High Court held that in the circumstances of the case these sales had not occasioned the movement of goods but it was the first sale made by M/s. Milkhiram and Sons to the State Trading Corporation which had occasioned the movement of goods. Secondly, it held that in the circumstances of the case "the property in goods after the delivery had been taken by the petitioner on behalf of the State Trading Corporation passed to the State Trading Corporation and simultaneously to the ultimate buyers. Thus the property in the goods passed to the ultimate buyers in Rajasthan when the goods had not reached the territory of India and were in the course of import. In view of the authority of their Lordships of the Supreme Court in J.V. Gokal and Co. (Private) Ltd. v. The Assistant Collector of Sales Tax (Inspection) Others [1960] 2 S.C.R. 852; 11 S.T.C. 186., it must be taken that the sale took place when the goods were in the course of import and they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, we are not inclined to dismiss the petition on this ground at this stage. Regarding the second point, the learned Advocate-General argues that the onus was on the assessee to bring his case within Article 286(1)(b) of the Constitution in respect of the sales to the various consignees. He says that there is no evidence on record as to when the State Bank of India endorsed the railway receipt in favour of the ultimate buyer in respect of each consignment and without this evidence it cannot be said that the title to the goods passed to the ultimate buyer at Khokhropar or in the course of import. He further urges that it would have to be investigated in each case as to when the State Bank endorsed the railway receipt and when the goods crossed the customs barrier. He says that it is not contested that the ultimate buyer took delivery of the goods without producing the railway receipt by virtue of special arrangements entered into with the railway, and according to him, it is only when the delivery was taken by the buyers in Rajasthan that the title passed. By that time, according to him, the course of import had ceased. We do not think it necessary to consider the various argume ..... X X X X Extracts X X X X X X X X Extracts X X X X
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