TMI Blog1975 (11) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... atel, Senior Advocate (Vineet Kumar and B.P. Singh, Advocates, with him), for the appellant. V.P. Raman, Additional Solicitor-General (N. Nettar and R.C. Kaushik, Advocates, with him), for the respondent. -------------------------------------------------- The judgment of the Court was delivered by UNTWALIA, J.- In this appeal by special leave the question for determination is whether the appellant-company is a dealer within the meaning of section 2(b) of the Central Sales Tax Act, 1956-hereinafter referred to as the Central Act, liable to pay sales tax thereunder. The appellant, Bagal Kot Cement Co. Ltd., is a manufacturer of cement. For the period 1st April, 1961, to 31st March, 1962, it filed a return before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade the inter-State sales and realized sales tax from the customers under the Central Act. Its contention is that being an agent of the State Trading Corporation and having effected all the sales under its direction it was not a dealer as defined in section 2(b) of the Central Act and hence was not liable to pay any sales tax thereunder. The liability was of the Corporation. In our opinion there is no substance in the appellant's argument. After having realized the sales tax from the various customers and voluntarily and ex contractu paid it as per the return submitted, it was ill-advised to take an unsustainable stand of its not being liable to pay sales tax under the Central Act. There cannot be any doubt that the sales of cement made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansfer the property in the goods to the purchasers. These facts were not disputed before us. Rather in the special leave petition it is admitted that the invoices were issued by the appellant-company in its own name. We may now refer to some relevant clauses of the agreement between the parties. They are as follows: "1. The Corporation hereby appoints the agents to take on its behalf delivery of the entire cement produced at the works of Bagal Kot Cement Co. Ltd. and to arrange for the distribution of such cement in accordance with such directions as may be issued by the Corporation from time to time. 2.. The agents may enter into contracts for sale of cement on behalf of the Corporation and shall, inter alia, arrange for the despatch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment the company was in possession and custody of the goods. It was entering into contracts for sale of cement and selling it. The property in the goods was passed on to the buyers by the company. Under clause 7 it was authorised to collect sales tax, both on intra-State and inter-State sales, and to discharge its liability devolving upon it as dealer under the various Sales Tax Acts and Rules. As per clause 13 of the agreement only the difference of price after deducting the company's remuneration was to be credited to the Corporation's account. Section 2(b) of the Central Act reads as follows: "'Dealer' means any person who carries on the business of buying or selling goods, and includes a Government which carries on such business." " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s business as such agent, authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods. An agent may be a mercantile agent although he has no general occupation as an agent, or has only one customer, or although his general occupation is that of an independent dealer in the commodity entrusted to him, provided that he acts in the transaction in his capacity as mercantile agent; but he must not be a mere servant or shopman." In para 713, is stated: "A del credere agent is one who, usually for extra remuneration, undertakes to indemnify his employer against loss arising from the failure of persons with whom he contracts to carry out their contracts." In the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er." We agree with the above view of the learned Chief Justice. Mr. D.V. Patel, the learned counsel for the appellant, heavily relied on the definition of the expression "place of business" given in clause (dd) of section 2 of the Central Act, which includes "(i) in any case where a dealer carries on business through an agent (by whatever name called), the place of business of such agent". Counsel submitted that the above inclusive definition would show that it was the Corporation which was carrying on the business through the appellant-company as its agent and for the purpose of the Central Act the place where the business was carried on by the company as the Corporation's agent would be the place of business of the Corporation. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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