Punjab Distilling Industries Ltd. Vs.
The Commissioner of Income-Tax, Simla [1958] INSC 118 (24 November 1958)
SARKAR, A.K.
AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B.
CITATION: 1959 AIR 346 1959 SCR Supl. (1) 683
CITATOR INFO :
R 1964 SC1709 (1,2,13) R 1973 SC 376 (13) R
1988 SC1263 (15) C 1989 SC1696 (9)
ACT:
Income-tax-Distiller taking deposit
refundable on return of bottles-Balance of deposits after refund, if trading
receipt-Indian Income-tax Act (XI of 1922), S. 10.
HEADNOTE:
The appellant, a distiller of country liquor,
carried on the business of selling liquor to licensed wholesalers. Due to
shortage of bottles during the war a scheme was evolved, where under the
distiller could charge a wholesaler a price for the bottles in which liquor was
supplied at rates fixed by the Government, which lie was bound to repay to the
wholesaler on his returning the bottles. In addition to this the appellant took
a further sum from the wholesalers described as 'security deposit' for the
return of the bottles. Like the price of the bottles these moneys were also
repaid as and when the bottles were returned with this difference that the
entire sum was refunded only when go% of the bottles covered by it had been
returned. The appellant was assessed to income-tax on the balance of the
amounts of these additional sums left after the refunds made there out.
Held, that the amounts paid to the appellant
and described as 'security deposit' were trading receipts and therefore income
of the appellant assessable to tax. These amounts were paid as an integral part
of the commercial transaction of the sale of liquor in bottles and represented
an extra price charged for the bottles. They were not security deposits as
there was nothing to secure, there being no right to the return of the bottles.
684 K. M. S. Lakshmanier & Sons v.
Commissioner of Income-tax and Excess Profits Tax, Madras, [1953] S.C.R. 1057,
followed.
Davies v. The Shell Company of China Ltd.,
(1951) Tax Cas.
133; and Morley v. Tattersall, (1938) 22 Tax
Cas. 51, distinguished.
Imperial Tobacco Co. v. Kelly, (1943) 25 Tax
Cas. 292, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 119 of 1955.
Appeal from the judgment and order dated June
16, 1953, of the Punjab High Court in Civil Reference No. 1 of 1953.
A. V. Viswanatha Sastri and Naunit Lal, for
the appellant.
H. N. Sanyal, Additional Solicitor-General of
India, R. Gopalakrishnan, R. H. Dhebar and D. Gupta, for the respondent.
1958. November 24. The Judgment of the Court
was delivered by SARKAR, J.-The appellant is a company carrying on business as
a distiller of country liquor. It was incorporated in May 1945 and was in fact
a previously existing company called the Amritsar Distillery Co. Ltd.
reconstructed under the provisions of the Company's Act. The appellant carried
on the same business as its predecessor, namely, sale of the produce of its
distillery to licensed wholesalers. The wholesalers in their turn sold the
liquor to licensed retailers from whom the actual consumers made their
purchases. The entire trade was largely controlled by Government regulations.
After the war started the demand for country
liquor increased but difficulty was felt in finding bottles in which the liquor
was to be sold. In order to relieve the scarcity of bottles the Government
devised in 1940 a scheme called the buy-back scheme. The scheme in substance
was that a distiller on a sale of liquor became entitled to charge a wholesaler
a price for the bottles in which the liquor was supplied at rates fixed by the
Government which he was bound to repay to the wholesaler on the latter
returning the bottles. The 685 same arrangement, but with prices calculated at
different rates was made for the liquor sold in bottles by a wholesaler to a retailer
and by a retailer to the consumers.
Apparently it was conceived that the price
fixed under the scheme would be found to be higher than the price which the
bottles would fetch in the open market and the arrangement for the refund of
the price would therefore encourage the return of the bottles from the
consumers through the intermediaries ultimately to the distiller. The price
refundable was later increased perhaps because the previous price did not fully
achieve the desired result of the bottles finding their way back to the
distillers.
Sometime in 1944, the Amritsar Distillery Co.
Ltd. which then was in existence, insisted on the wholesalers paying to it in
addition to the price of the bottles fixed under the buy-back scheme, certain
amounts described as security deposits and calculated at varying rates per
bottle according to sizes for the bottles in which the liquor was supplied to
them promising to pay back for each bottle returned at the rate' applicable to
it and further promising to pay back the entire amount paid on a transaction
when 90 per cent. of the bottles covered by it had been returned.
The company while it was in existence
realised these additional sums and so did the appellant after it took over the
business. The object of demanding and taking these additional sums was
obviously to provide additional inducement for the return of the bottles to the
distiller so that its trade in selling the product of its distillery might not
be hampered for want of bottles. No time limit had been fixed within which the
bottles had to be returned in order to entitle a wholesaler to the refund, nor
does it appear that a refund had ever been refused. The price of the bottles
received by the appellant under the buy-back scheme was entered by it in its general
trading account while the additional sum received for them was entered in the
general ledger under the heading " Empty Bottles Return Security Deposit
Account ". It is not disputed that for the accounting periods with which
this case is concerned, the additional amounts had been taken 686 without
Government's sanction and entirely as a condition imposed by the appellant
itself for the sale of its liquor.
The appellant was assessed to income-tax on
the balance of the amounts of these additional sums left after the refunds made
there out. It had also been assessed to business profits tax and excess profits
tax on the same balance. Its appeals against the orders of assessment to these
taxes to the Appellate Assistant Commissioner and thereafter to the Tribunal
failed. It then obtained an order referring a certain question arising out of
the assessments for decision by the High Court of Punjab. The question
originally suggested was reframed and in its final form reads thus:
Whether on the facts and circumstances of the
case the collections by the assessee company described in its accounts as
" empty bottle return security deposits" were income assessable under
section 10 of the Income-tax Act? The High Court answered the question in the
affirmative.
The present appeal is against that decision
which related to all the three varieties of taxes for which the appellant had
been made liable.
We are concerned in this appeal only with the
additional sums demanded and received by the appellant and described as security
deposit and not with the price of bottles which also it took under government
sanction. The question is whether these amounts called security deposits were.
trading receipts. Now, as already stated, the appellant's trade consisted in
selling in bottles liquor produced in its distillery to wholesalers. The sale
was made on these terms: In each transaction of sale the appellant took from
the wholesaler the price of the liquor, a certain sum fixed by the government,
as price of the bottles in which the liquor was supplied and a further sum
described as security deposit for the return of the bottles. The moneys taken
as price of the bottles were returned as and when the bottles were returned.
The moneys described as security deposit were also returned as and when the
bottles were returned with only this difference that in this case the entire
sum taken in one 687 transaction was refunded when 90 per cent. of the bottles
covered by it had been returned, though the remaining 10 per cent. had not been
returned. Such being the nature of the appellant's trade and the manner in
which it was conducted, these additional sums appear to us to be its trading
receipts.
Mr. Vishwanatha Sastri appearing on behalf of
the appellant first contended that on these facts the amounts could not be
regarded as price and that therefore they were not trading receipts. He said
that the price of the bottles was separately fixed and the amount taken as
deposit was different from and exclusive of, it. This contention is founded on
the use of the word price in the buy-back scheme in connection with the rates
which the distiller was entitled to charge a wholesaler for the bottles. It
seems to us that this contention lays undue emphasis on that word.
We think that the High Court took substantially
a correct view of the matter when it said that in realising these amounts
" the company was really charging an extra price for the bottles ".
It is clear to us that the trade consisted of sale of bottled liquor and the
consideration for the sale was constituted by several amounts respectively
called, the price of the liquor, the price of the bottles and the security
deposit. Unless all these sums were paid the appellant would not have sold the
liquor. So the amount which was called security deposit was actually a -part of
the consideration for the sale and therefore part of the price of what was
sold. Nor does it make any difference that the price of the bottles was entered
in the general trading account while the so called deposit was entered in a separate
ledger termed " empty bottles return deposit account ", for, what was
a consideration for the sale cannot cease to be so by being written up in the
books in a particular manner. Again the fact that the money paid as price of
the bottles was repaid as and when the-bottles were returned while the other
moneys were repaid in full when 90 per cent. of the bottles were returned does
not affect the question for ,none of these sums ceased to be parts of the
consideration because it had been agreed that they would be 688 refunded in
different manners. It is not contended that the fact that the additional sums
might have to be refunded showed that they were not part of the price. It could
not be so contended because what was expressly said to be the price of bottles
and admitted to be price was also refundable. If so, then a slightly different
method providing for their refund cannot by itself prevent these additional
sums from being Price.
Now, if these additional sums were not part
of the price, what were they ? Mr. Sastri said that they were deposits securing
the return of the bottles. According to him if they were such security
deposits, they were not trading receipts. Again we are unable to agree. There
could be no security given for the return of the bottles unless there was a
right to their return for if there was no such right, there would be nothing to
secure. Now we find no trace of such a right in the statement of the care. The
wholesalers were clearly under no obligation to return the bottles. The only
thing that Mr. Sastri could point out for establishing such an obligation was
the use of the words " security deposit ". We are unable to hold that
these words alone are sufficient to create an obligation in the wholesalers to
return the bottles which they had bought. If it had been intended to impose an
obligation on the wholesalers to return the bottles, these would not have been
sold to them at all and a bargain would have been expressly made for the return
of the bottles and the security deposit would then have been sensible and
secured their return. The fact that there was no time limit fixed for the
return of the bottles to obtain the refund also indicates that there was no
obligation to return the bottles. The substance of the bargain clearly was that
the appellant having sold the bottles agreed to take them back and repay all
the amounts paid in respect of them.
For this part of the case Mr. Sastri relied
on Davies v. The Shell Company of China Ltd. (1), but we do not think that case
assists at all. What had happened there was that the Shell Company had
appointed a large number of agents in China to sell its products (1) (1951) 32
Tax Cas. 133.
689 and had taken from each agent a deposit
to secure itself against the risk of default by the agent duly to PI account
for the sale proceeds. The deposits were made in Chinese dollars and later
converted into sterling. When the Company closed its business in China it
reconverted the deposits into Chinese dollars and refunded to the agents the
deposits made by them. Owing to a favourable exchange for the conversion of
sterling into dollars, the Company made a profit and it was sought to assess
this profit to incometax. It was held that the profit could not be taxed, for
the deposits out of which it was made were really not trading receipts at all.
Jenkins, L. J., observed at p. 157:
" Mr. Grant described the agents'
deposits as part of the Company's trading structure, not trade receipts but
anterior to the stage of trade receipts, and I think that is a fair description
of them. It seems to me that it would be an abuse of language to describe one
of these agents, after he had made a deposit, as a trade creditor of the
Company; he is a creditor of the Company in respect of the deposit, not on
account of any goods supplied or services rendered by him in the course of its
trade, but simply by virtue of the fact that he has been appointed an agent of
the Company with a view to him trading on its behalf, and as a condition of his
appointment has deposited with or, in other words, lent to the company the
amount of his stipulated deposit." lie also said at p. 156:
it If the agent's deposit had in truth been a
payment in advance to be applied by the Company in discharging the sums from
time to time due from the agent in respect of petroleum products transferred to
the agent and sold by him the case might well be different and might well fall
within the ratio deciding of Landes Bros. v. Simpson (1) and Imperial Tobacco
Co. v. Kelly (2). But that is not the character of the deposits here in
question. The intention manifested by the terms of the agreement is that the
deposit should be (1) (1934) 19 Tax Cas. 62.
(2) (1943) 25 Tax Cas. 292.
87 690 retained by the Company, carrying
interest for the benefit of the depositor throughout the terms of the agency.
It is to be available during the period of
the agency for making good the agent's defaults in the event of any default by
him ; but otherwise it remains, as I see it, simply as a loan owing by the
Company to the agent and repayable on the termination of the agency ".
It would therefore appear that the deposits
in that case were held not to be trading receipts because they had not been
made as part of a trading transaction. It was held that they had been received
anterior to the commencement of the trading transactions and really formed the
trading structure of the Company. The character of the amounts with which we
are Concerned is entirely different. They were parts of the trading
transactions themselves and very essential parts: the appellant would not sell
liquor unless these amounts were paid and the trade of the appellant was to
make profit out of these sales. The fact that in certain circumstances these
amounts had to be repaid did not alter their nature as trading receipts. We
have already said that it is not disputed that what was expressly termed as
price of bottles was a trading receipt though these had to be repaid in almost
similar circumstances. We may point out that it had not been said in Shell
Company case(1) that the deposits were not trading receipts for the reason that
they might have to be refunded; the reason for the decision was otherwise as we
have earlier pointed out, namely, that they were no part of the trading
transactions. We therefore think that the deposits dealt with in the Shell
Company case were entirely of a different nature and that case does not help.
Mr. Sanyal was prepared to argue that even if the amounts were securities
deposited for the return of the bottles, they would still be trading receipts,
for they were part of the trading transactions and the return of the bottles
was necessary to enable the appellant to carry on its trade, namely, to sell
liquor in them. As we have held that the amounts had not been paid as security
for the return of the bottles, we do not (1) (1951) 32 Tax Cas. 1133.
691 consider it necessary to pronounce upon
this contention.
We might also refer to the observations made
in Imperial Tobacco Co. v. Kelly(1) mentioned in the Shell Company case (2) and
set out below. There the Company in the course of its trading activity used to
purchase tobacco in America and for that purpose had to acquire American
dollars. It so happened that after it had acquired a certain amount of dollars
for making the purchases, it was prevented from buying tobacco in America by
Government orders passed due to outbreak of war. While the dollars lay with the
Company, they appreciated in value and later the Treasury acquired the dollars
and paid the Company for them in sterling at the then current rate of exchange,
as a result of which payment the Company made a profit. It was hold that the
profit was a trading receipt of the Company. Lord Greene said at p. 300:
" The purchase of the dollars was the
first step in carrying out an intended commercial transaction, namely, the
purchase of tobacco leaf. The dollars were bought in contemplation of that and
nothing else ". He also observed that the dollars " were an essential
part of a contemplated commercial operation ". It seems to us that the
amounts with which this case is concerned, were paid and were refundable as an
integral part of a commercial transaction, namely, the sale of liquor in
bottles by the appellant to a wholesaler.
The case nearest to the present one is, in
our view, that decided by this Court in K. M. S. Lakshmanier & Sons v. Commissioner
of Income-tax and Excess Profits Tax, Madras (3). There the appellants, who
were the assessees, were merchants carrying on business as the sole selling
agents for yarn manufactured by the Madura Mills Co. Ltd. They sold the yarn to
their constituents and in the relevant accounting period the sales were made
under three successive arrangements each of which covered a part of it. Under
each arrangement, the assessees were paid a certain initial (1) (1943) 25 Tax
Cas. 292. (2) (1951) 32 Tax Cas. 133.
(3) (1953) S.C.R. 1057.
692 sum by their customers. The question was
as to the nature of these initial payments. Under the first arrangement "
the appellants had two accounts for each constituent, namely, ' a contract
deposit account' and ' a current yarn account', crediting the moneys received
from the customers in the former account and transferring them to the yarn
account in adjustment of the price of the bales supplied then and there, that is,
as and when deliveries were made under a contract either in Installment or in
full ". It was held that the amounts received from the customers under
this arrangement were taxable as they were merely advance payments of the price
and could riot therefore be regarded as borrowed money. This was clearly so
because under this arrangement cash was deposited by a purchaser in respect of
a contract of purchase at the time it was made and was to be applied when the
goods had been delivered by the appellant under that contract towards the price
payable in respect of them, such price not being payable in any other manner.
The arrangement for the second part of the
accounting period was that the payment made by a constituent at the time of the
making of a contract was taken as " Contracts advance fixed deposit "
and it was refunded when the goods under the contract had been supplied and the
price in respect thereof paid in full irrespective of the earlier payment. With
respect to the payment initially made under this arrangement Patanjali Sastri,
C. J., said at p. 1067 :
"...we are of opinion that, having
regard to the terms of the arrangement then in force, they partake more of the
nature of trading receipts than of security deposits. It will be seen that the
amounts received were treated as advance payments in relation to each "
contract number " and though the agreement provided for the payment of the
price in full by the customer and for the deposit being returned to him on the
completion of delivery under the contract, the transaction is one providing in
substance and effect for the adjustment of the mutual obligations on the
completion of the contract. We hold accordingly that 693 the sums received
during this period cannot be regarded as borrowed money............
It seems to us that the amounts involved in
the present case were exactly of the nature of the deposits made in the second
period in Lakshmanier & Sons' case (1). There, as here, as soon as a
transaction of sale was made the seller received certain moneys in respect of
it. It is true that in Lakshmanier & Sons' case the transaction was a
contract to sell goods in future whereas in the present case the transaction
was a sale completed by delivery of the goods and receipt of the consideration.
But that cannot change the nature of the payment. In Lakshmanier & Sons'
case, the payment initially made was refundable after the price had been paid;
in the present case the contract is to refund the amount on the return of the
bottles already sold. In each case therefore the payment was made as part of a
trading transaction and in each case it was refundable on certain events
happening. In each case again the payment was described as a deposit. As in
that case, so in the present case, the payment cannot be taken to have been
made by way of a security deposit. We must therefore on the authority of
Laskhmanier & Sons' case, hold the amounts in the present case to have been
trading receipts.
It was Mr. Sastri's effort to bring the case
within the arrangement that prevailed in the third part of the accounting
period in Laskhmanier & Sons' case, the initial payments made during which
were held to be loans. But we think that he has not succeeded in this. The
payments during the third period were made under the following arrangements:
" Instead of calling for amounts from you towards 'Security Deposit' due
to bales for which we are entering into forward contracts with you and
returning the same to you from the said deposit then and there, as we are doing
now, and in order to make it feasible, we have decided to demand from you a
certain sum towards Security Deposit and keep the same with us so long as our
business connections under forward contracts will continue with you."
Under this arrangement a certain (1)[1953] S.C.R. 1057.
694 sum was kept in deposit once and for all
and there. after Lakshmanier & Sons commenced to enter into the trading
transactions, namely, forward contracts for sale-of yarn with the constituents
who deposited the money. The sum so deposited was to be refunded with interest
at three per cent. per annum at the end of the business connection between the
parties, if necessary, after retaining there out any amount due on the
contracts made with the constituent which, the latter was at the termination of
the business found not to have paid. Patanjali Sastri, C. J., observed at p.
1063 in regard to the deposits made under this arrangement:
"The amount deposited by a customer was
no longer to have any relation to the price fixed for the goods to be delivered
under a forward contract-either in Installments or otherwise. Such price was to
be paid by the customer in full against delivery in respect of each contract
without, any adjustment out of the deposit, which was to be held by the
appellants as security for the due performance of his contracts by the customer
so long as his dealings with the appellants by way of forward contract
continued, the appellants paying interest at 3 per cent. in the meanwhile, and
having, as appears from the course of dealings between the parties' the use of
the money for their own business. It was only at the end of the " business
connection " with the appellants that an adjustment was to be made towards
any possible liability arising out of the customer's default.
Apart from such a contingency arising, the
appellants undertook to repay an equivalent amount at the termination of the
dealings. The transaction had thus all the essential elements of a contract of
loan, and we accordingly hold that the deposits received under the final
arrangement constitute borrowed money ".
Having observed that the description of the
payment made by the customer as a deposit made no difference for a deposit
included as a loan, the learned Chief Justice further said at p. 1064:
" The fact that one of the conditions is
that it is to be adjusted against a claim arising out of a possible 695 default
of the depositor cannot alter the character of the transaction. Nor can the
fact that the purpose for which the deposit is made is to provide a security for
the due performance of a collateral contract invest the deposit with a
different character. It remains a loan of which the repayment in full is
conditioned by the due fulfillment of.
the obligations under, the collateral
contract ".
In coming to the view that he did with regard
to the arrangement prevailing in the third period, the learned Chief Justice
referred' with approval to the case of Davies v. Shell Company of China(1)
which we have earlier mentioned.
Now it seems to us that the reasons on which the
learned Chief Justice based his conclusion that the deposits during the third
period were loans do not apply to the present case. In the present case, unlike
in Lakshmanier & Sons' case, the amount paid has a relation to the price of
the goods sold ; it is part of that price as we have earlier said. It was a
condition of each transaction of sale by the appellant. It was refundable to
the wholesaler as soon as he returned the bottles in which the liquor had been
supplied to him in the transaction in respect of which the deposit had been
made. The deposit in the present case was really not a security at all ; it did
not secure to the appellant anything. Unlike Lakshmanier & Sons' case, in
the present case a deposit was made every time a transaction took place and it
was refundable under the terms of that transaction independently of other
deposits under other transactions. In Lakshmanier & Sons' case, the deposit
was in the nature of the assee's trading structure and anterior to the trading
operations, as were the deposits considered in Shell Company case(1). In the
case in hand the deposit was part of each trading transaction. It was re.
fundable under the terms of the contract relating to a trading transaction
under which it had been made; it was not made under an independent contract nor
was its refund conditioned by a collateral contract, as happened in Lakshmanier
& Sons' case.
(1) (1951) 32 Tax Cas. 133.
696 We therefore think that the present case
is governed by the arrangement covering the second period and: not the third
period mentioned in Lakshmanier & Sons case (1), and, come to the
conclusion that the amounts with which we are concerned were trading receipts.
Mr. Sastri also referred us to Morley v.
Pattersall and contended that the amounts with which we are concerned, were of
the same kind as those considered in that case and were not income. It seems to
us that there is no similarity between the two cases at all. Tattersall was a
firm who sold horses of its constituents on their behalf and received the price
which it was liable to pay them. It so happened that in the course of years
various customers did not come and demand the amounts due to them. Initially
Tattersall showed those amounts in its accounts as liabilities which they
really were. Later it thought that it would never have to pay back these
amounts and thereupon transferred them to the credit of its partners. The
Revenue sought to tax the amounts so transferred as Tattersall's income. The
question was whether the amounts upon transfer became Tattersall's income. It
was never contended that the amounts when received as price of the
constituent's horses sold were Tattersall's income and the only contention was
that they became income upon being transferred to the credit of the partners. It
was held that the amounts had not by being entered on the credit side, become
income of the firm. Sir Wilfrid Greene said at p. 65 :
" Mr. Hill's argument was to the effect
that, although they were not trading receipts at the moment of receipt, they had
at that moment the potentiality of becoming trading receipts. That proposition
involves a view of Income Tax Law in which I can discover no merit except that
of novelty." Then again he said:
" It seems to me that the quality and
nature of a receipt for Income Tax purposes is fixed once and for all when it
is received. What the partners did in (1) [1953] S.C.R. 1057.
(2) (1938) 22 Tax Cas. 51.
697 this case, as I have said, was to decide
among themselves that what they had previously regarded as a liability of the
firm they would not, -for practical reasons, regard as a liability; but that
does not mean that at that moment they received something, nor does it mean
that at that moment they imprinted upon some existing asset a quality different
from what it had possessed before. There was no existing asset at all at that
time." All that this case decided was that moneys which were not when
received, income-and as to this there was no question could never later become
income. With such a case we are not concerned. The case turned on the fact that
the moneys received by Tattersall were never its moneys; they had been received
on behalf of others and that receipt only created a liability towards them. Now
it seems to us quite impossible to say that the amounts with which we are
concerned were not the appellant's moneys in the sense that the constituent's
moneys in the hands of Tattersall were not its. The amounts in this case were
not received on account of anyone but the appellant. No doubt these moneys
might have to be refunded if certain things happened which however might never
happen, but that did not make them the moneys of those who might become
entitled to the refund.
Mr. Sastri referred us to the observations of
Sir Wilfrid Greene, M. R., in Morley v. Tattersall (1) at p. 65 to the effect
that, " The money which was received was money which had not got any
profit making quality about it; it was money which, in a business sense, was a
client's money and nobody else's" and contended that the amounts involved
in the present case were of the same nature. We are unable to agree. If we are
right in our view that the amounts were trading receipts, it follows that they
must have a profit making quality about them. Their payment was insisted upon
as a condition upon which alone the liquor would be supplied with an agreement
that they would. be repaid oil the return of the bottles. They (1)(1938) 22 Tax
Cas. 51.
88 698 were part of the transactions of sale
of liquor which produced the profit and therefore they had a profit making
quality. Again, a wholesaler was quite free to return the bottles or not as he
liked and if he did not return them, the appellant had no liability to refund.
It would then keep the moneys as its own and they would then certainly be profit.
The moneys when paid were the moneys of the appellant and were thereafter in no
sense the moneys of the persons who paid them.
Having given the matter our anxious
consideration which the difficulties involved in it require, we think that the
correct view to take is that the amounts paid to the appellant and described as
" Empty Bottles Return Security Deposit " were trading receipts and
therefore income of the appellant assessable to tax. We agree with the High
Court that the question framed for decision in this case, should be answered in
the affirmative.
In the result the appeal fails and is
dismissed. The appellant will pay the costs in this Court.
Appeal dismissed.
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