TMI Blog1964 (7) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... er cent. From this the officer deducted for that year sales to registered dealers and also sales by way of export under section 27A of the C.P. and Berar Sales Tax Act, 1947. In respect of this latter category of deduction, sales amounting to Rs. 1,20,943 were deducted. For the next chargeable accounting period the Sales Tax Officer determined the sales liable to deduction by way of export amounting to Rs. 2,13,502 and for the last period, the officer determined sales amounting to Rs. 3,18,052 as export sales. Though the words "export sales" have been used by the Sales Tax Officer, in fact the reference is to sales outside the State of Madhya Pradesh, which were claimed as beyond the taxing power of the State on account of the provisions of Article 286(1)(a), read with Explanation to clause (1) of the Constitution. The petitioner was not satisfied with the determination of the taxable turnover and he preferred an appeal which was heard and decided by the Assistant Commissioner of Sales Tax in each case. After the appeals were filed, that officer issued a notice purporting to be under rule 28 of the C.P. and Berar Sales Tax Rules, in Form No. XXV, intimating that the appellate aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Berar Sales Tax Rules, 1947? (3) Whether on the facts and circumstances of the case the Tribunal is justified in law in coming to the conclusion that within the meaning of Article 286(1)(a) read with the Explanation (Constitution of India) the goods were not actually delivered outside the State as a direct result of sales for the purposes of consumption in that State? (4) Whether on the facts and circumstances of the case and having regard to Article 286(2) (Constitution of India), the Tribunal is justified in law to reject the contention of the dealer that the sales were in the course of inter-State trade or commerce?" After some discussion the learned counsel appearing for the assessee has stated that he does not want to press for answers to questions Nos. (1), (2) and (4). It is not therefore necessary to decide these questions for answer. The only question therefore that survives for answer by this Court is whether on the facts and circumstances of the case the Tribunal was justified in coming to the conclusion that the goods were not actually delivered outside the State of Madhya Pradesh as a direct result of sales for the purpose of consumption outside the State, and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate authority inferred that the goods were approved either by the purchaser or his agent who must have come to Gondia for the despatch and approved the goods before they were loaded in the wagons. It also observed that in a few cases the railway receipts were handed over to the purchasers or their agents after endorsing them in their favour, but the conclusion to which the learned authority came was that the goods must be held to have been actually delivered to the buyers at the despatching stations, and on this view the first appellate court refused to treat the sales as Explanation sales or sales outside the State. The matter was then taken to the second appellate authority by the assessee. With respect to this contention about the liability of these despatches, the second appellate authority observed as follows: "I have gone through the bill books produced by the appellant as well as railway receipts register and it is found that the appellant had despatched goods worth Rs. 57,102-5-0 in his own name. Consequently deduction under section 27A is allowed in respect of sales worth Rs. 57,102-5-0. The despatches made by the appellant in the names of his servants or relatives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption in that State." As far as we are able to find, no reasons are given for coming to this conclusion. In support of this application the learned counsel for the assessee has urged before us that the following facts must be taken to have been accepted by the authorities which dealt with the case. (a) That the manner and mode of transactions in respect of despatches where the consignor and the consignee were the same, were identical with the manner and mode of transactions in respect of despatches when the consignment is in the name of either the purchaser or the servant of the dealer. (b) That the railway receipts were delivered to the purchasers either at Gondia or sent by post to the purchasers. (c) That the conclusion that actual delivery was given within the State of Madhya Pradesh is drawn by inference and as a matter of construction in law and not as a result of finding of facts so far as the first and the second appellate authorities are concerned. The assessee's contention therefore is that the view which found favour with the Sales Tax Authorities that the requirements of the Explanation to Article 286(1)(a) of the Constitution for bringing a sale into the catego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held in the Supreme Court that as the goods were send under railway receipts to places outside the State of Andhra and actually delivered outside for the purpose of consumption in those States, the State of Andhra had no authority to levy tax in respect of such sale transactions. The learned counsel for the assessee draws analogy from the facts of the case which went to the Supreme Court and applies it to the case of the assessee. According to the learned counsel, even assuming that some of the railway receipts were handed over to the purchasers at Gondia or that they were endorsed, it has been found by the second appellate authority, which was a final court of fact, that all despatches (1) [1964] 15 S.T.C. 430. were made at the instance of the dealer. In other words, that finding involves a conclusion that the goods were never delivered in the physical sense to the purchaser within the State of Madhya Pradesh, the despatch work having been undertaken and executed by the assessee. The assessee had produced bills showing expenses in respect of the despatches of leaves, whether the consignment was obtained in the name of the dealer or in the name of the purchaser or his servant. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actually delivered within the State and the actual delivery was outside the State for the purpose of consumption outside the State, it is difficult to hold that such sales are excluded from the category of Explanation sales or such sales are not sales outside the State. The learned counsel appearing for the department, however, contended that it was not enough for the assessee to show that actual delivery had not taken place within the State. It had further to be shown that wherever delivery was taken, it was for the purpose of consumption in that State or in that area. In our opinion, the department is not entitled to raise any such contention, firstly because no such contention was raised, no facts have been found and no such question has been agitated or referred to us. The only question that has been referred to us is whether on the facts and circumstances of the case it could be held in law that the goods were not actually delivered outside the State as a result of sales for the purpose of consumption in that State. It does not seem to have been doubted or disputed at any stage of the proceedings that, whether delivery was inside the State or outside the State, the sale was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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