PATHAK, J. - (1.) - I agree with the answer proposed by my brother Gulati, J., to the question referred in this case.
(2.) THE facts are not clearly set out in the statement of the case. They appear, however, from the assessment orders, the appellate orders and the revisional orders and have been summarised by my learned brother. There is nothing to show that during the submissions made on the hearing of the revision applications before the Additional Judge (Revisions) Sales Tax, either party relied on a different version of the facts from those appearing in the respective assessment orders and appellate orders. It seems to me that upon those facts the only reasonable conclusion is that there was a sale by Caltex Limited to the assessee as a result of which kerosene oil moved from outside Uttar Pradesh into the State and that kerosene oil was sold by the assessee. The contention for the assessee cannot be accepted that it is Caltex Limited which imported the kerosene oil into Uttar Pradesh and then sold it to the assessee. There was a prior contract of sale between the company and the assessee and in consequence of it the kerosene oil moved into the State of Uttar Pradesh. It may be that property in the goods passed in Uttar Pradesh from the company to the assessee. But it is now settled law that for the purpose of deciding whether the movement of goods from one State to another has taken place as a covenant or incident of the contract of sale the question whether property passes in one State or the other is immaterial. It is sufficient that there is a contract of sale and as a covenant or an incident of that contract there is a movement of goods from one State to another. The decision of this court in Bhika Mal Musaddi Lal v. Commissioner of Sales Tax, U.P. ([1963] 14 S.T.C. 770), relied on by the assessee does not help the assessee at all. That case does not decide that, if there is a contract of sale and consequent upon such contract goods cross from one State to another, the purchaser under that contract is not an importer. The court expressly pointed out : "Applying rule 2(d-1) to the facts of this case, we come to the conclusion that the assessee was the importer of sugar under clause (c) or under clause (b). If it be said that sugar was imported into Uttar Pradesh as a direct result of a sale, namely the sale made by the Regional Director to the assessee, the sugar was intended to be resold in the same condition and clause (b) would apply. The person importing it was the assessee who was dealer and, when it sold it, it became the importer ..." The Commissioner of Sales Tax is entitled to his costs which I assess at Rs. 100. Counsel's fee is assessed in the same figure. GULATI, J. - The firm of M/s. Gupta Brothers, hereinafter referred to as the assessee, carries on business in motor parts, motor oil, lubricants, diesel and kerosene oil etc. at Firozabad in Agra district. It acts as the distributor of M/s. Caltex Co. Ltd., a well-known oil company. The Caltex Company is situate outside Uttar Pradesh but has branches inside the State. During the assessment proceedings under the U.P. Sales Tax Act (hereinafter referred to as the Act) for the assessment year 1958-59, the assessee claimed exemption in respect of its turnover of kerosene and diesel oil on the ground that it was not the importer and the turnover of those commodities, when imported from outside Uttar Pradesh was taxable only at the point of sale by the importer. According to the assessee, it was the company which was the importer. Similar contention was raised in subsequent three assessment years viz., 1959-60, 1960-61 and 1961-62. This contention of the assessee was not accepted by the Sales Tax Officer nor by the Judge (Appeals) nor by the Judge (Revisions). The assessee then sought a reference under section 11 of the Act and the Judge (Revisions) Sales Tax, Agra, has submitted this and the connected references for the opinion of this court on the following common question of law : "Whether in the circumstances of the case stated above, the assessee was an 'importer' within the meaning of rule 2(d-1)(b) of the U.P. Sales Tax Rules and as such liable for sales tax on the sales of kerosene and diesel oil ?" Unfortunately, the statement of the case does not set out all the relevant facts of the case bearing upon the point. However, from a reading of the revisional order of the Judge (Revisions) and the orders of the Sales Tax Officer and the Judge (Appeals) Sales Tax, the following facts appear to have been admitted or found disclosing the modus operandi between the parties :- "(i) that the assessee in its capacity as the distributor of the company, placed on the company orders for the supply of kerosene and diesel oil. Such orders were booked by the company's representatives, (ii) that some of the supplies were made by the company from its depot at Agra while others were made from its stock outside Uttar Pradesh, (iii) that one of the recitals in the agreement of distributorship was : 'whereas the company has at the request of the distributor agreed to sell kerosene to the distributor at Firozabad or at such place or places, as the company may elect upon the terms and conditions hereinafter mentioned', (iv) that the stock supplied by the company from outside Uttar Pradesh (mainly from Bombay) was consigned to the assessee through rail and the relevant railway receipts were taken out by the company sometime in its own name and sometime in the name of the assessee. (v) that such railway receipts were sent to the assessee by the company through its bankers at Firozabad and the bank delivered the railway receipts after collecting payment of the company's relative bills from the assessee."
(3.) THERE is no dispute about the turnover of the goods purchased by the assessee from Agra depot of the company. The dispute only relates to the turnover of kerosene imported from outside Uttar Pradesh. The reference to diesel oil in the question referred by the Judge (Revisions) is superfluous because the relevant notification referred to below relates only to kerosene oil.;