V.Bhargava, A.C.J. - (1.) The Judge (Revisions) has, under Section 11 of the U.P. Sales Tax Act, referred the following three questions for our opinion :- Question 1.-Whether it is sufficient for a claim under Section 5 that goods were actually delivered outside the State of Uttar Pradesh irrespective of the facts whether the property in the goods passed and the party taking delivery of the goods is not the party which had entered into a contract with the mills despatching the goods ? Question 2.-Whether the words 'sale for delivery outside Uttar Pradesh' mean that title would not pass until delivery is taken outside the State of Uttar Pradesh ? Question 3.-Whether rebate would be admissible when there are two contracts in respect of the same goods, one between the mills and the party residing in the State of Uttar Pradesh and the other between that party and a party residing outside the State of Uttar Pradesh, and goods are despatched outside the State on some instructions from the parties which had not entered into a contract with the mills despatching the goods ?
(2.) The statement of the case and the order passed by the Judge (Revisions) on the revision application show that the assessee, Messrs Modi Food Products Co., Ltd., Modinagar, was carrying on the business of manufacturing mustard oil at Modinagar. When being assessed to sales tax for the assessment year 1949-50 on the basis of the sales of mustard oil during the previous year ending 31st May, 1948, the assessee claimed rebate to the extent of half the tax on sales of the value of Rs. 39,47,921-8-0 under Section 5 of the U.P. Sales Tax Act. The claim was based on the assertion that this turnover of the assessee represented proceeds of sales of mustard oil for delivery outside Uttar Pradesh which mustard oil was also, in fact, actually delivered outside Uttar Pradesh. The Judge (Revisions) did not accept this contention of the assessee and did not allow the rebate claimed. Consequently, at the request of the assessee, the three questions mentioned above have been referred for opinion of this Court. It appears to us that the questions, as framed by the Judge (Revisions), are not in appropriate language and, in order to bring out the points arising correctly, they have to be re-framed. Under Section 5 of the U.P. Sales Tax Act, an assessee claiming rebate has to show that the rebate is being claimed on proceeds of sales which were for delivery outside Uttar Pradesh and in respect of which the delivery did actually take place outside Uttar Pradesh. In this case also, therefore, both these ingredients had to be established by the assessee and the questions that the Judge (Revisions) actually had to decide were whether these requirements were or were not satisfied in view of the material placed before the Judge (Revisions). We, consequently, consider that the following two questions appropriately bring out the questions of law which arise out of the revisional order of the Judge (Revisions). Question 1.-Whether the sales, on the proceeds of which rebate is claimed by the assessee under Section 5 of the U.P. Sales Tax Act, were for delivery outside Uttar Pradesh ; and Question 2.-Whether the goods in respect of the sales mentioned in question 1 were actually delivered outside Uttar Pradesh ?
(3.) In order to answer these two questions, we have to take into account all the findings of fact which were recorded by the Judge (Revisions) in his revisional order and which have been included in the statement of the case. On that material it has been urged by learned counsel that we should in answering these two questions, follow the view which was expressed by this Court earlier in the case of Shri Ganesh Sugar Mills Ltd. v. Commissioner of Sales Tax, Uttar Pradesh, Lucknow, and Anr. [1960] 11 S.T.C. 426. It, however, appears to us that the decision of this Court in that case cannot be applied to the present case because such questions have to be answered on the facts and circumstances which may have been found by the Judge (Revisions) in each particular case. In the case of Shri Ganesh Sugar Mills Ltd., which came up before this Court earlier, the judgment given by this Court would show that the Judge (Revisions) had failed to record any finding at all on the two questions, whether the sales were for delivery outside Uttar Pradesh and whether the goods in respect of those sales were actually delivered outside Uttar Pradesh. The reference in that case was answered in favour of the assessee by setting aside the decision recorded by the Judge (Revisions) on the ground that the Judge (Revisions) had never recorded any finding that the goods were actually delivered inside Uttar Pradesh and yet that was the basis of the consequential order passed by the Judge (Revisions) refusing relief of rebate under Section 5 of the U.P. Sales Tax Act. The position in the case now before us is different. Here the Judge (Revisions) has recorded the finding that the delivery was actually effected within Uttar Pradesh when the railway receipts were handed over to the purchaser of the oil, Messrs Krishna Kumar Om Prakash. Further, the correspondence between the parties has been taken into account, disclosing the various circumstances from which an inference has to be drawn whether the sales were for delivery within or outside Uttar Pradesh. In these circumstances, the view expressed by us in that earlier case cannot automatically govern this case.;