TMI Blog1955 (3) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... n con- ditions embodied in an order in the form below: "To Messrs. Tata Oil Mills Co., Ltd., Coimbatore. Dear Sirs, Ref: Sales contract-Groundnut oil. This is to confirm that I have this day sold groundnut oil to you as per terms and conditions given below: Quantity: tons of 2240 Ibs. each. Price: Rs. 2,025 (Rs. two thousand and twenty-five only) per ton of 2240 Ibs. nett loose f.o.r. Pollachi Jn. including sales tax. Quality: Pure expeller groundnut oil with six per cent. F.F.A. or below. Delivery: f.o.r. Pollachi Jn. oil to be supplied during the month of February (within the 15th) 1951. Containers: are to be supplied by you f.o.r. Pollachi Jn. R. R. as usual." The course of business between the assessee and the purchasers was as follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed, a rebate shall be allowed of one-half of the tax levied on sales of such articles for delivery outside the State if such articles are actually so delivered." The assessing officer rejected this claim and held that the assessee was not entitled to the exemption claimed. The assessee filed an appeal to the Commercial Tax Officer and at that stage raised the contention that he was entitled to exemption in respect of the whole of the tax paid by reason of the Explanation to Article 286(1)(a) of the Constitu- tion. The appellate authority decided against the assessee and a fur- ther appeal to the Sales Tax Appellate Tribunal was also rejected. Hence this revision. Before us two points were argued. The first was that the petitioner wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the contract merely in order to ascertain the price and that though for the purpose of the Sale of Goods Act, the property might have passed to the buyer either when the containers of the buyer were filed up in the godowns of the seller or at any rate when the goods were put on rail at Pollachi, this was irrelevant for the purpose of considering whether the petitioner was entitled to the exemption under the Article above set out, since the Explanation in express terms renders the pass- ing of property irrelevant for the purpose. It was also contended that delivery "as a direct result of the sale" was distinct from delivery in pursuance of a sale because "a result" can be reached only after the terms of the contract are fulfille ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , there could not obviously be a delivery of the same goods outside the State merely because they were subsequently transported to and reached Ernakulam. In this connection we might refer to the terms of section 39(1) of the Sale of Goods Act which runs in these terms: "39. (1) Where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, or delivery of the goods to a wharfinger for safe custody, is Prima facie deemed to be a delivery of the goods to the buyer." In terms of this provision which merely relates the common law rule, the seller was on the terms of the contract w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Madras, the tax liability has accrued and this is not altered or affected by reason of the sub- sequent despatch of the goods at the instance of the buyer from the State of Madras to Ernakulam outside the State. Counsel for the petitioner also relied on the circumstance that the weight of the oil as well as the fatty acid content were checked at Ernakulam and it was only thereafter that the balance of the price was paid to the assessee. In our judgment these do not bear upon the point now under consideration. We are unable to gather from the contract any stipulation that the goods continue to be the property of the seller until they are tested and weighed which is what this argument virtu- ally amounts to and therefore these circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s "a result of the sale" the goods "reached" some place outside the State. That is not however how we consider the judgment has to be understood. If under the terms of the contract between the parties, and as one of the stipula- tions therein, a delivery has taken place within the State, the Constitu- tion does not envisage a fictitious or notional second delivery of the same goods outside the State affording a like exemption by reason merely of the goods being transported outside the State by the purchaser even though it be by a transaction which forms part of the very delivery to him. In our opinion the actual delivery referred to in the explana- tion is a delivery by the seller to the buyer and not the delivery involv- ed in a buyer's ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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