FAZL ALI - (1.) THESE are two groups of appeals - one consisting of six appeals by the firm Balabhagas Hulaschand dealing in jute. Civil Appeal No. 449/71 arises from the judgment of the High Court in SJC No. 41 of 1968 decided on 22-4-1970 in respect of the assessment for the quarter ending June 1960. The other five appeals are by the same firm in respect of the sales tax levied by the State of Orissa for the quarters ending December, March 1960 and Dec. 1960 to June 1961, decided by the judgment of the High Court in S. J. C. Nos. 73-77 of 1968 dated 27/04/1970. As all the appeals involve a common point they were consolidated and have been heard together.
(2.) APPEALS Nos. 888-890/74 have been filed by the firm M/s. Keluram Ramkaran in respect of the assessment of tax made by the State of Orissa for the quarters ending September 30, 196 1/06/1962 and 30/09/1962. These appeals arise out of the judgment of the High Court given in S. J. C. Nos. 70-72/1971 dated 11/04/1973. The High Court in these cases followed its previous judgment, which is the subject-matter of the six appeals mentioned above, and held that the levy was valid. The points of law arising in these appeals also are identical to the points arising in the other six appeals referred to above, and in view of the common points of law involved in all these appeals we propose to dispose then of by one common judgment. The appellant Balabhagas Hulaschand is a firm dealing in buying and selling jute and has its Head Office in Calcutta. The firm used to purchase raw jute grown in Orissa and send the same to its buyers in the State of West Bengal. The modus operandi was that after the goods were received by the appellant firm they were despatched in bags from Cuttuck and Dhanmandal railway stations to the Railway Mills Siding in Calcutta. The bags were booked in the name of the buyer mills through their broker. The goods on arrival in the Mills Railway siding at Calcutta were inspected by the buyer firm and if they were found to be in accordance with the specifications mentioned in the agreement of sale they were accepted. The appellants in Appeals Nos. 888-890/74 are a firm dealing in similar business with this difference that it has got its purchasing centre at Kendupatna in the District of Cuttack, and it was from Cuttack that the goods were despatched to the buyers in West Bengal. The transaction of sale was entered into through a licensed broker "East India Jute and Hessian Exchange Ltd." and the buyers were the Managing Agents of the firm Kittlewell-bullen and Co. Ltd., Calcutta. A letter has been produced by the parties which appears of the Paper Book which forms the contract or agreement of sale entered into between the parties in pursuance of which the goods were dispatched to the buyer firm at Calcutta. Under the contract the responsibility in respect of the quality, moisture, shortage in weight and risk in transit lay on the seller. It is also not disputed that in all these appeals a concluded sale takes place when the goods despatched in the name of the Calcutta firm were ultimately accepted by the said firm and the price of the said goods was paid to the appellants. On the basis of these concluded transactions of sale the Government of Orissa levied sales tax under Section 3 (a) of the Central Sales Tax Act, 1956, on the basis that the sales were inter-State sales and, therefore, fell within the ambit of that section. The assessing authorities upto the stage of the Tribunal negatived the contention of the appellants that the sale was merely an internal sale which took place in the State of West Bengal and not an inter-State sale. Thereafter the appellants moved the Tribunal for making a reference to the High Court of Orissa but failed to persuade the Tribunal to make a reference. The appellants then moved the High Court of Orissa under Section 24 (3) of the Orissa Sales Tax Act to direct the Tribunal to make a statement of the case to the High Court. Accordingly the Tribunal referred the following points for consideration: "(1) Did title to the goods pass in Orissa or in West Bengal? (2) Even if title in the goods passed in West Bengal whether in the facts and circumstances of this case, the transaction constituted "sale in the course of inter-State trade?"
(3.) AFTER considering the entire evidence and the circumstances and the law on the subject the High Court by its judgment dated 22/04/1970 negatived the plea taken by the appellants and held that although the title in the goods passed in West Bengal and the sale took place there, since the sale occasioned the movement of the goods from Orissa to West Bengal it was an inter-State sale, and, therefore, it was clearly governed by Section 3 (a) of the Central Sales Tax Act. Thereafter the appellants moved the High Court for granting leave to appeal to this Court, which having been rejected, the appellants filed an application to this Court for grant of special leave to appeal and the same having been granted, these appeals have been set down for hearing before us. Mr. Hardy learned counsel for the appellants in Appeals Nos. 449/454/71 has submitted only one point for our consideration. He has contended that on the facts found it wound appear that the movement of goods from Orissa to West Bengal took place in pursuance of an agreement of sale and not in pursuance of the sale itself which actually took place in West Bengal, and, therefore, the sale is not covered by Sec. 3 (a) of the Central Sales Tax Act and the levy made by the State of Orissa was illegal. Mr. Ghosh who followed Mr. Hardy and was appearing in Appeals Nos. 888-890/74 further added that the agreements in the instant cases were merely forward contracts in respect of unascertained and future goods, and, therefore, fell beyond the ambit of the provisions of the Central Sales Tax Act.;