TMI Blog1954 (4) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... was asked to state sufficient facts to enable this Court to decide the question of law referred to this Court. This Court set aside the order of the Board refusing to state the case and required it to state it and refer all ques- tions of law arising out of its order dated the 14th December, 1951. Such questions of law were also indicated. 4.. In compliance with the order of this Court, the Board of Revenue has stated the case and referred for decision all the questions of law arising out of its order dated the 14th December, 1951. This statement of the case covers the questions of law raised in Miscellaneous Civil Case No. 105 of 1952. 5.. The questions of law referred to this Court are: "(i) Whether despatches of goods after the Act came into force against orders received prior to the Act are in law sales within sec- tion 2(g) of the Act; (2) Whether on the facts and circumstances of the case, the goods despatched outside the State can in law be regarded as sales within section 2(g) of the Act read with Explanation 11; (3) Whether these provisions are ultra vires the State Legislature; (4) Whether (a) the packing expenses and (b) dharmada charges in this case could be held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs were supplied were as under:- Method Value of goods Rs. (i) Through bank .2,76,997 14 0 (ii) By V.P.P. .13,067 11 0 (iii) By credit system 2,07,729 1 0 4,97,794 10 0 The Assistant Commissioner, Sales Tax, held that the firm was liable to pay sales tax on the total turnover of Rs. 6,81,590-7-6, which finding was maintained by the Sales Tax Commissioner in the appeal. With a slight modification the order was affirmed by the Board of Revenue. 7. As the assessment period is from the 1st June, 1947, to the 12th November, 1947, the references in this order to the various provi- sions of the Act and the Rules made thereunder will be to the Act and the rules as then in force. 8. As regards the first question the contention of the assessee is that he is not liable to sales tax in view of the proviso to section 4. That proviso is:- "Provided that the tax shall not be payable on sales made in the course of the execution of a contract which is shown to the satisfaction of the Commissioner to have been entered int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Indian Sale of Goods Act, 1930, the sale of any goods which are actually in the Central Provinces and Berar at the time when the contract of sale as defined in that Act in respect thereof is made, shall, wherever the said contract of sale is made, be deemed for the purpose of this Act to have taken place in the Central Provinces and Berar." (1)[1952] 3 S.T.C. 343; I.L.R. 1953 Nag. 332. The assessee had accepted offers of customers outside the State either at the head office at Kamptee or his branch shop at Mandsaur in Madhya Bharat every time against the stocks in hand in Madhya Pradesh, and the despatches were made from the State against those agreements. Some sales were made on credit and as regards the rest the price was recovered either by V.P. post, through Bank or through the Mandsaur shop against delivery of railway receipts. On similar facts it was held in Shriram Gulabdas v. Board of Revenue(1) that Expla- nation II is attracted and such sales will be regarded as sales within section 2 (g) of the Act read with the Explanation. 10.. The learned counsel for the assessee did not place before us any material to take a view different from that taken in Shriram Gulabdas's ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is stated: "These charges as per invoices on record are included in the sale price and are covered by the charges for anything done in respect of goods until delivery." In view of these facts, the packing charges, hamali and cartage in the instant case were rightly included in the sale price. N.C. Palia and Sons v. The State of Bombay(1) is distinguishable as there the price was fixed by Government ex-factory and conveyance charges were separately charged in the bills. 13.. The case of dharmada stands on a different footing. It is not a charge for anything done by the dealer in respect of the goods at the time of or before delivery thereof. The Board of Revenue includes it in the sale price on the ground that it is a valuable considera- tion for the transfer of goods, i.e., price proper. We do not agree. If it were price proper, it would have been included in the price and not separately charged. There is no material on record to hold that the seller could refuse to perform the agreement if dharmada was not paid. It appears to be a willing charge paid by the buyer in addition to the valuable consideration for the transfer of property. We are therefore inclined to hold on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that any matter directly affecting the revenue of the Province in which the Advocate-General or Government Advocate appears shall be placed before and heard and decided by a Bench of two or more Members as directed by the President. From a perusal of section 7 of the Board of Revenue Act and the rules framed thereunder it is manifest that the powers of the Board can be exercised by a Member sitting alone. Under rule 5(1) he may refer any proceeding pending before him to the President for constitution of a Bench of two Members under certain circumstances provided in the rule. Whether the Bench of two Members heard this matter on a reference under rule 5(1) or under rule 8 is not known. There is nothing on record to show that the Advocate-General or Government Advocate appeared before the Board in the proceedings under section 23(I). It is submitted on behalf of the State that the proceedings under section 23(1) is not a matter affecting the revenue of the State directly and substantially within the meaning of rule 8. We cannot agree. The proceedings under section 23(1) are proceedings preliminary to the decision of the questions of law by the High Court. If the reference is made ..... 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