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TMI Blog1932 (4) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... able to duty under the Sea Customs Act, 1878. Since such an issue must ultimately depend upon the true effect of that Act as applied to the oils in question, it will be convenient to set forth at once the material provisions of the sections in point. They are numbered 29 and 30, and are as follows : "Section 29. On the importation into...... any customs port of any goods whether liable to duty or not, the owner of such goods shall, in his bill-of entry ......... state the real valve, quantity and description of such goods to the best of his knowledge and belief and shall subscribe a declaration of the truth of such statement at the foot of such bill. " In case of doubt, the Customs Collector may require any such owner or any other person in possession of any invoice, broker's note policy of insurance or other document, whereby the real value, quantity or description of any such goods can be ascertained, to produce the same and to furnish any information relating to such value, quantity or description which it is in his power to furnish. And thereupon such person shall produce such document and furnish such information...... "Section 30. For the purposes of this Act the real valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Now as a first step to the solution of the question so at issue, it would be natural to ascertain what, as matter of construction, the statutory expression in debate, "the wholesale cash price" really means or connotes. Only then can it be determined whether it is a price ascertainable in relation to the appellants' imported machinery oils, But the ambiguities of the sections, such as they are, which must ultimately be resolved, will be best exposed if attention is, in the first instance, directed to the position of these oils of the appellants in the Bombay market and to the course of business pursued by them after importation in their sale and disposition. 5. The facts relating to these matters were carefully found and stated in detail by the learned trial Judge, and as found by him were accepted by the High Court on appeal and by both sides before the Board. And, first, with reference to the position of the oils in the Bombay market the outstanding fact is that, imported as they are under the trade description of "Gargoyle," of no other oils can it be said, in Bombay, that, using the language of the Act, they are of "the like kind and quality". Accordingly the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l oils are disposed of direct to consumers, and never to dealers, whether for purposes of resale or otherwise. There is a good reason for this practice. lt eliminates or reduced the danger of the oils being adulterated before use and so serves to maintain their reputation for quality. The appellants themselves discharge all the functions of retailers of their oil as so sold. They maintain warehouses, offices and staffs, employ salesmen to canvass consumers, advertise, insure their stock, and bear the risk of bad debts. The selling price to consumers is about 70 per cent above entry price, the selling price being swollen by the appellants' retailing profit and by due provision for these charges in respect of matters subsequent to importation and in character just indicated. 7. Orders are obtained direct from consumers : the smallest quantity supplied is a case of eight gallons. The selling price is the same whatever be the quantity large or small purchased by the consumer. But if a consumer enters into a contract to take all his requirements from the appellants for a year he is entitled to a discount from 21/2 to 15 per cent according to the quantity purchased in the year. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly be regarded as "wholesale". He held further that while the appellants' sales were normally made on a credit of 30 days there was no difficulty in ascertaining the cash price by deducting from the credit price a discount at the ordinary current rate, and that while expression "trade discount" did import a discount allowed to the trade, he thought that the Crown was justified in conceding as a deduction from the appellants' list prices an average discount of 12% per cent, fairly representing the actual discount allowed by the appellants to their customers in their annual accounts. The alternative in the learned Chief Justice's view was to hold not that there being no room for a "trade" discount in the transaction the sale was not one for a wholesale price in terms of the Act at all, but that no discount whatever should be allowed to the appellants who would then be left chargeable with duty on their imported oils at their current list prices less only a discount for credit given. In his view accordingly the contentions of Government well founded and the action failed. And in all this Baker, J; concurred, although he found in the reported case later to be referred to a further rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presence of the word "cash" in the definition their lordships would have been in agreement with the Chief Justice. But that is to by no means the case. 13. Their Lordships accordingly reach the conclusion that in no sense can the price charged to consumers for the machinery oils imported by the appellants be regarded as such a whole sale cash price" as is described in the Act, nor is it in their judgment possible by further inquiry to extract any such price from any other available material. Indeed the Act as their Lordships read it does not invite any such further inquiry. The wholesale cash price primarily in view is, they cannot doubt, that price current for staple articles, the amount of which if not a subject of daily publication in the press is easily asertainable in appropriate trade circles. Their Lordships do not find in the section any sufficient indication that the alternative basis of assessment indicated in S. 30(b) is only to be a "dernier resort". For the great bulk of dutiable goods in their infinite variety it must, they feel satisfied, be the only available basis. And in their Lordships' judgment it is the basis on which there oils of the appellants must be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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