Amritsar Sugar Mills Co. Ltd. Vs.
Commissioner of Sales Tax, U.P  INSC 293 (13 December 1965)
13/12/1965 SIKRI, S.M.
CITATION: 1966 AIR 1242 1966 SCR (3) 45
Uttar Pradesh Sales Tax Act, 1948-- S.
5--Contract to communicate later, by buyer, place of delivery-Delivery to
another Person outside State-if rebate, admissible-Uttar Pradesh Sales Tax
(Temporary) Rules, 1948.
The assessee-sugar mill sold sugar to parties
who carried on business inside the State of Uttar Pradesh, but the sugar was
despatched to stations outside the State of Uttar Pradesh and delivered to
another party in compliance with the instructions issued by the buyers. Under
the contract entered between the assessee and the buyer, the assessee was to
deliver the sugar at places to be communicated by the buyer. The assessee-mill
claimed rebate on these sales under s. 5 of the Uttar Pradesh Sales Tax Act,
1948. The Sales Tax authorities rejected the claim. 'Me High Court held that the
rebate was not admissible under s. 5 because the contract did not contain any
condition requiring the assessee to deliver goods outside Uttar Pradesh and
because the despatch instructions.were not a part of the contract when it was
formed and did not get incorporated into it or become a part of it when given.
In appeal to this Court.
HELD : (i) In. the context of s. 5 of the Act
the word 'delivery' occurring therein means 'actual delivery'. The object
underlying s. 5 is to encourage export of goods manufactured in Uttar Pradesh
and notified under s. 5. The course of trade adopted by the buyers and the
assessee shows that if the word 'delivery' is interpreted to mean 'constructive
delivery' very few 'export sales' would enjoy rebate under s. 5. As long as the
contract evinces an intention to export and actual delivery is given to
effectuate that intention the object of the legislature to ensure that only
real 'export sales' enjoy the rebate would be fulfilled. [53 B-D] Lord Krishna
Sugar Mills v. Commissioner of Sales Tax, U.P.
S.T. reference No. 263/54 dated March 19,
India Coffee and Tea distributing Co. Ltd. v.
The State of Madras 10 S.T.C. 359, approved.
(ii)The sales by the assessee were for actual
delivery outside Uttar Pradesh. The despatch instructions contemplated by the
contract entered into by the assessee, were part of the contract. The contract
contemplated a destination in spite of constructive delivery having been
contracted to be made at the station where the assessee-mill was-situated.
Further the contract was not to actually deliver at some place to be chosen or
assented to by the assessee-mill but at any place without restrictions. The
contract required nothing more for completion than a mention of the place. when
the despatch instructions were given, it was not a case of performing the
contract but specifying a term of contract. [53 EG] 4 6
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 86 to 89 of 1965.
Appeals by special leave from the judgment
and order, dated October 17, 1963 of the Allahabad High Court in S. T. Ref.
No. 109 of 1956.
A. V. Viswanatha Sastri and B. N. Kripal, for
N. D. Karkhanis and O. P. Rana, for the
respondent, K. K. Jain, for intervener.
The Judgment of the Court was delivered by
Sikri, J.These four appeals by special leave are directed against the judgment
of the Allahabad High Court in a Sales Tax Reference made by the Judge
(Revisions), Sales Tax, Uttar Pradesh, Lucknow, on being directed to do so by
the High Court under s. 11 of the Uttar Pradesh Sales Tax Act, 1948,
hereinafter referred to as the Act. The question referred was as follows :
"Whether in law the revising authority
was right in holding that the sales in dispute were not for delivery outside
Uttar Pradesh and that the applicant Was not entitled to a rebate under sec. 5
of the Act." The question was referred in the following circumstances.
The appellant, hereinafter referred to as the
assessee mills, carries on the business of manufacturing and selling sugar and
is registered as a dealer under the provisions of the Act. During the previous
year relevant to the Assessment Year 1948-49, the assessee company had sold
sugar to parties who carried on business outside Uttar Pradesh and also
delivered the same outside Uttar Pradesh. It also sold sugar to parties who
carried on business inside Uttar Pradesh but the sugar was despatched to
stations outside Uttar Pradesh in compliance with the instructions issued by
the buyers. The assessee mills submitted an application under s. 5 of the Act
in form VII, prescribed by, the Uttar Pradesh Sales Tax (Temporary) Rules,
1948, claiming 50% rebate on the sales of sugar delivered outside Uttar
Pradesh. The Sales Tax Officer allowed rebate in respect of the sales of sugar
to parties who carried on business outside Uttar Pradesh but rejected the claim
for the sales which were made to parties carrying on business inside Uttar
Pradesh. In respect of the assessment year 1948-49 there were four assessment
orders covering each quarter of the year,, the, 47 first quarter being April
1948 to July 1948. Section 5 of the Act reads as follows "Sales of certain
goods for delivery outside the State-In respect of such manufactured goods as
may be notified by the State Government and subject to such restrictions and
conditions as may be prescribed, a rebate of one-half of the tax levied on
sales of such goods for delivery outside the Uttar Pradesh shall be allowed if
such goods are actually so delivered." In exercise of the powers conferred
by S. 5 of the Act, the Governor was pleased to order that rebate of one half
of the tax levied on sales of certain goods including sugar manufactured in
Uttar Pradesh for delivery outside Uttar Pradesh shall be allowed if such goods
were actually so delivered. It appears that this notification was modified on
March 30, 1949, but we are not concerned with this modification.
The Sales Tax Officer dealt with the question
at issue in his order in respect of the quarter ending March 31, 1949, in
detail and he was of the view that if property passed from the seller to the
purchaser in Uttar Pradesh, s. 5 and the notification issued under it could not
apply. The assessee mills then filed four revision applications before the
Judge (Revisions) Sales Tax. The Judge (Revisions) disposed of the four
applications by two orders, first dated February 1, 1950, and the second dated
December 5, 1950. He held that "the words 'sales of such goods for
delivery outside U.P. clearly show that the intention of the framers of the act
was to allow a rebate only in cases in which the goods are sold subject to the
condition that they would be delivered outside U.P. It is also clear that
section 5 contemplates only one buyer who purchase the goods and also take
their delivery outside U.P. In other words the party who buys the goods and the
party who takes the delivery must be one and the same. It is not disputed that
the sales of sugar in respect of which the claim has been disallowed were in
favour of one party and delivery was taken by another party outside U.P. The
party after buying the sugar under a contract of sale had the goods despatched
outside U.P. by the Mills to another party outside U.P." He added later
that "on a true construction of section 5 rebate will be permissible only
if delivery is taken outside U.P. by the same party which purchased the sugar
from the mills." Then 48 on the facts he held that the selling agents,
Tandon Bros., who entered into a contract with the assessee mills for sale of
the goods were really the buyers and although the goods were despatched outside
Uttar Pradesh in accordance with the despatch instructions of some contract
arrived at between Tandon Bros., and the party to which the goods were
ultimately delivered, the assessee mill had not entered into the contract with
the parties to which the goods were despatched outside Uttar Pradesh. He
further repelled the argument that despatch instructions formed part of the
The assesses mills then filed four
applications under s. 1 of the Act, but the Judge (Revisions) Sales Tax
rejected the applications on the ground that no question of law arose.
The High Court, however, directed the Judge
(Revisions) to state a case under s. 11 of the Act. A consolidated statement of
the case was referred. The Judge (Revisions) drawing up the statement of the
case was not the Judge (Revisions) who had disposed of the revision
In the statement of the case certain further
facts were given and those are as under "The applicants (assessee mills)
were members of the Indian Sugar Syndicate Ltd., and they were entitled to send
sugar under the orders of the Syndicate through some selling agents of their
own. M/s. Tandon Bros., were the selling agents of the Mills. It was through
them that the sales had been made to buyers outside U.P. The goods were
despatched outside U.P. under the instructions received from the buyers through
the selling agents. The delivery of the goods was made outside U.P. It is on
the basis of these facts that the applicants (assessee mills) claimed that the
sales had been made for delivery outside U.P." The standard contract form
prescribed by the Indian Sugar Syndicate has been annexed to the case and the
following terms are relevant :
"AN AGREEMENT made this Sixteenth day of
October 1948 between the AMRITSAR SUGAR MILLS CO. LTD. ROHANA KALAN
(hereinafter called "the Seller") and Tandon Brothers New Mandi
Muzaffarpur (hereinafter called "the Buyee") for the sale of the
following goods by the Seller to the Buyer upon the following terms and conditions
49 A B C D E F Factory Description Price per Md. ofQuantity Period(s) Re-
(short) of quality 40 Srs. 82 2/7 lb. of marks Name F.O.R. Factory delivery
Station Ex- Factory.
Rohana Average colour Rs. Thirty Six Bags
4,000 Ready Mills. not lower than annas two & I.S.S. No. 127 pies three
Average grain not Each of pack- finer than
I.S.S. ing 2/30.
No. D. or I. 36/2/3
2. Delivery is to be made F.O.R. Rohana Kalan
station, all terms and conditions of the Railway (torn) to be binding on the
The goods shall be deemed to have been
delivered (a) when tendered Ex-Factory godown, (b) when put on F.O.R. at
Factory Station or (c) when tendered for carriage by rail at the said station,
and in case of delay in accept (torn) by the Railway after such tender the said
goods shall be deemed to be held by the Seller on account of the Buyer until
they are put on rail. When the goods are received by Railway, all the terms and
conditions of the Railway shall be deemed to be accepted by the buyer.. Tender to
the Railway for carriage shall be deemed to have been made when a (torn)
carriage or a Forwarding Note has been given to the Station Master of the
The seller shall not, (torn) circumstances
whatsoever, be responsible for non-despatch, or refusal to despatch or delay in
despatch or any (torn) mistake in despatch by the Railway.
Where (after tender as aforesaid) any delay
in despatch occurs, the Buyer shall (torn) delivery of the goods without any
claim against the Seller on account of such delay or the consequence thereof
(torn) delay in despatch is due to non-supply of wagons or due to booking
restrictions, the Seller, shall, if required by the (torn) obtain from the
factory a letter stating the cause of the delay.
Where owing to restriction of whatsoever
nature imposed by Carriers on despatches, Seller is unable to despatch
according to the route requested by the Buyer, then Seller shall have the
right, after giving to the Buyer 50 three days time to despatch by the cheapest
available route at Seller's sole discretion to the destination required by the
original despatch instructions. Within the period of three days above
mentioned, Buyer may change the destination provided the (torn) despatching
instructions are capable of immediate execution. In the case of despatch by
road, river or other transport any combination thereof, all the terms and
conditions of the Carriers are be a binding on the Buyer, and tender to Carrier
shall be a good delivery within the meaning of the clause.
3. The buyer is to give the Seller
despatching instructions in accordance with the above schedule, in the case
(torn) ready sales within ten days from the date hereof when the quantity is
less than 1500 bags, and within fifteen days when quantity is 1500 bags or
more; and in the case of forward sales, not less than fourteen days prior to
the expiry of the (torn) for delivery of the goods as provided in the above
Schedule. When goods are for delivery in installments the times (torn) clause
provided shall apply to the despatching instructions for each installment.
The sugar will be despatched at (torn) Risk
unless the buyer shall give to the Seller instructions to the contrary in the
The despatching instructions to be given as
aforesaid shall be such as the Seller will then be in a position to carry
(torn) having regard to restrictions on booking, availability of wagons,
transshipment difficulties and other matters. The despatch (torn) instructions
once given shall not ordinarily be amended or altered and they can be altered
or amended only with the consent of the seller and before the goods have left
the factory, the Seller is not in any way responsible for any delays that may
arise through error or mistake in the despatching instructions sent by the buyer.
If the Buyer fails to give despatching instructions within the time and in the
manner aforesaid he will be deemed not to have given any despatching
instructions at all.
No complaint as regards description, quality
or condition of any consignment will be admitted unless the Buyer has complied
with Clause 3 thereof and has paid to the Seller the full price and all overdue
or other 51 charges and unless the complaint is made in writing to the Seller
within three days from the arrival of such consignment at destination, the date
of such arrival being deemed to be the date of arrival entered in the Books of
the Railway Co., Steamer Co., Carrier or Port Authorities. The completion of
Risk Note form A as required by the Railway authorities at certain seasons of
the year shall not be construed as adverse remarks as to the condition of the
goods or its packing.
If any complaint, as to quality condition
quantity or weight is referred to arbitration and an allowance is awarded in
thereof, the Buyer shall retain the goods and such allowance shall be deducted
from the price and be refunded by the Seller." The High Court, in view of
its finding that the delivery was contracted to be made ex-factory, the factory
being within the State of Uttar Pradesh and the contract not containing any
condition requiring the assessee to deliver the goods outside Uttar Pradesh,
held that rebate was not admissible under s. 5. The High Court said that its
detailed reasons were contained in its, judgment in Lord Krishna Sugar Mills v.
Commissioner Sales Tax, II.P.(1) In that case Desai, C.J., held that the
obligation to deliver goods outside Uttar Pradesh must arise only from a term
in the contract, and in the absence of such a term it could, not be said that
the goods were to be delivered outside Uttar Pradesh. The learned Chief Justice
further observed as follows A term in a contract that despatch instructions
would be furnished later necessarily means that the seller undertakes to comply
with them. If under a contract itself something is to be settled later, what is
settled later becomes as much binding under the contract itself as the terms
already settled under the contract. Still, I do not think that the sales in
those cases in which the contracts provided for despatch instructions to be
given later became sales for delivery outside Uttar Pradesh merely because the
despatch instructions were that they should be despatched outside Uttar
Pradesh. All that can be said is that the sales were for "delivery in
accordance with despatch instructions" and a sale for "delivery in
accordance with despatch instructions" is not necessarily a sale for
"delivery outside Uttar Pradesh." (1) Sales Tax Reference No. 263 of
1954 judgment delivered on, March 19, 1963..
52 He seemed to be of the view that in order
to come within the expression "delivery outside Uttar Pradesh' it must be
one of the terms settled at the time of the formation of the contract itself
that the goods will be delivered outside Uttar Pradesh, and if this is not so
settled and all that is settled is that they will be delivered in accordance
with despatch instructions, the sale would neither be a sale for delivery
outside Uttar Pradesh nor a sale for delivery inside Uttar Pradesh. He was
clearly of the view that despatch instructions were not a part of the contract
when it was formed and did not get incorporated into it or become a part of it
when given. Pathak, J., in a concurring judgment, was of the view that it must
be in the contemplation of the parties at the time of entering into the
contract that the goods which were the subject of sale must be delivered
outside Uttar Pradesh. He observed that "there is a distinction between
settling and determining the terms of a contract and complying with the terms
'of that contract. The former relates to the formation of the contract, the
latter to its execution." The first question which arises in these appeals
is whether the word "delivery" in the expression "sales of such
goods for delivery outside Uttar Pradesh" occurring in s. 5 of the Act
means actual delivery or constructive delivery. If it means constructive
delivery then there is no doubt that on the facts as stated by the Judge
(Revisions) the contract provided for constructive delivery inside Uttar
Pradesh and the assessee mills would not be entitled to rebate under S. 5.
The Madras High Court had occasion to
consider a similar question in India Coffee and Tea Distributing Co. Ltd., v. The
State of Madras.(1) It held that the word "delivery" in s. 5 of the
Madras General Sales Tax Act, 1939, which exempts from taxation sales of tea
"if the sale is for delivery outside the State and delivery actually was
made" did not include anything which the law deemed "delivery"
but was restricted to physical delivery of the thing sold. In coming to this
conclusion, Subrahmanyam, J., observed :
"In deciding whether the word
"delivery" in section 5 (v) includes delivery in law, we have to have
regard to the objects of the Legislature in enacting section 5 (v). The object
obviously was the promotion of the export of tea. The Legislature intended that
where tea was (1) 10 S.T.C. 359.
53 exported from the State for being
delivered outside the State, the sale which resulted in such export should be
exempt from taxation.
'Mat object would not be wholly achieved if
we hold that delivery of documents of title in the State of Madras would make
the sale liable to taxation." We agree with the view expressed by the
Madras High Court.
It seems to us that the object underlying S.
5 is to encourage export of goods manufactured in Uttar Pradesh and notified
under s. 5. The course of trade adopted by the Indian Sugar Syndicate Ltd.. and
the assessee mills shows that if the word "delivery" is interpreted
to mean 'constructive delivery' very few 'export sales', if we may use the
expression, would enjoy rebate under s. 5. As long as the contract evinces an
intention to export and actual delivery is given to effectuate that intention
the object of the Legislature to ensure that only real 'export sales' enjoy the
rebate would be fulfilled. It seems to us that in the context of S. 5 the word
'delivery' occurring in s. 5 means 'actual delivery'.
The next question that arises is whether the
sales by the assessee mills were for actual delivery outside Uttar Pradesh. The
answer to this problem depends on the answer to the question whether despatch
instructions contemplated by clause 2 and clause 3 of the contract were part of
the contract entered into by the assessee mills. It seems to us that they were.
The contract by the assessee mills was to actually deliver at a place to be
communicated. This view is reinforced by what is contained in clause 11 of the
contract. This clause contemplated a destination in spite of constructive
delivery having been contracted to be made at Rohana Kalan Station. Further,
the contract was not to actually deliver at some place to be chosen or assented
to by the assessee mills but at any place without restrictions.
The contract required nothing more for
completion than a mention of the place. When the despatch instructions were
given, it was not a case of performing the contract but specifying a term of
the contract. If the place of actual delivery had been specified and it was a
question merely of communicating the route by which the goods were to be
delivered this would perhaps related the mode of performance of the contract.
But communication of the place where actual delivery is to be given does not
relate to the mode of performance but formation-of the contract. It seems to
us, with respect, that the High Court reared in relating despatch instructions
to the mode of performance of the contract.
54 In the result we hold that the assessee
mills is entitled to rebate under s. 5. We set aside the judgment of the High
Court and answer the question as follows :
"The revising authority was not right in
holding that the sales in dispute were not for delivery outside Uttar Pradesh.
Further, the applicant was entitled to rebate under S. 5 of the Act." The
appellant will have his costs incurred in the High Court and here. One hearing