9911796707
TMI Blog1952 (10) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... port sale, whichever first occurs can well be regarded as taking place in the course of the other - Civil Appeal No. 25, 28, & 29 of 1952, - - - Dated:- 16-10-1952 - PATANJALI SASTRI M., MUKHERJEA B.K. AND DAS S.R. AND VIVIAN BOSE AND GHULAM HASAN Represented by: M.P. Amin, Advocate-General of Bombay (M.M. Desai. Advocate, with him), instructed by P.A. Mehta, Agant, for the State of Bombay. for the interveners. C.R. Pattabhiraman, Advocate, instucted, by Sardar Bahadur, Agent, for the respondent in C.A. No. 28/52. for the respondents. N.C. Chatterjee, Senior Advocate(C.R. Pattabhiraman, Advocate, with him), instucted by M.S.K. Sastri, Agent,for the respondent in C.A. N o. 25/52. for the respondents. N.C. Chatterjee, Senior Advocate (Thomas Vellappally, Advocate, with him), instucter by V.P.K. Nambiyar, Agent, for the respondent in C.A. No. 29/52. for the respondents. V.K.T. Chari, Advocate-General of Madras (Alladi Kuppuswamy and V.V.Raghavan, Advocates, with him), instructed by P.A. Mehta, Agent, for the State of Madras. for the intherveners. M.C. Setalvad, Attorney-General for India and C.K. Daphtary, Solicitor-General for India (G.N. Joshi, Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of certiorari and prohibition quashing the assessments made on them and prohibiting such assessment in future. The applications were heard, along with nine other applications for similar reliefs by dealers in cashew nuts, by a Division Bench (Kunhiraman, C.J., and Subramania Iyer, J.) who upheld the claim of exemption and quashed the assessment orders in respect of the transactions subsequent to the commencement of the Constitution. From that decision the State has preferred appeals in all the cases on a certificate granted by the High Court under Article 132(1) of the Constitution. As the appeals involved important questions of law which may have a bearing on the sales tax legislation of the various States in India, this Court directed notice of these proceedings to the Attorney-General for India and the Advocates-General of those States, and they have intervened and participated in the debate at the hearing of these appeals. When the argument had proceeded for some time, it was discovered that the material facts relating to the course of dealings in cashew nuts, which were more complex in character, had not been clearly ascertained and consequently the relative appeals were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... speech of one of the members who unsuccessfully moved an amendment defining export as meaning the last transaction and import as meaning the first transaction. In view of the wide construction thus placed upon clause (b) of Article 286(1), the arguments before us ranged over a large field, and as many as four different views as to its scope and meaning were pressed upon us for our acceptance. (1) The exemption is limited to sales by export and purchases by import, that is to say, those sales and purchases which occasion the export or import as the case may be, and extends to no other transactions however directly or immediately connected, in intention or purpose, with such sales or purchases, and where so ever the property in the goods may pass to the buyer. This is the view put forward on behalf of the State of Madras. The Advocate-General thought that a State could not impose sales tax though title passed within State limits while the goods were still under transport on the high seas and no question of exemption could therefore arise. He said, however, that no such case had actually arisen. (2) In addition to the sales and purchases of the kind described above, the exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 286(1)(b). That clause, indeed, assumes that the sale has taken place within the limits of the State and exempts it if it takes place in the course of the export of the goods concerned. In the foregoing discussion we have assumed that the word "sale" used in the Constitution has the same meaning as in the law relating to the Sale of Goods, but it has been suggested in the course of the argument that it imports a wider concept than the passing of title from the seller to the buyer which under that law is determined by highly technical rules based upon the presumed intention of the parties and liable to be displaced by their expressed intention. We leave the point open as it is unnecessary for the purpose of these appeals to pronounce any opinion upon it. It was said that, on the construction we have indicated above, a "sale in the course of export" would become practically synonymous with "export", and would reduce clause (b) to a mere redundancy, because Article 246(1), read with Entry No. 83 of List I of the Seventh Schedule, vests legislative power with respect to "duties of customs including export duties" exclusively in Parliament, and that would be sufficient to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the import of the goods, as the case may be, out of or into the territory of India come within the exemption and that is enough to dispose of these appeals. Our attention was called, in the course of the debate, to various American decisions which hold that the power "to regulate" inter-State commerce vested exclusively in the Congress by Article 1, Section 8(3), of the American Constitution (the Commerce Clause) excludes by implication the States' power of taxation only when the goods enter "the export stream", and until then such goods form part of "the general mass of property in the State" subject, as such, to its jurisdiction to tax, and that this principle was also applicable to cases arising under Article 1, Section 9(5) and Section 10(2) (the import-export clause): [see, e.g., Em-presa Siderurgica v. Merced Co.(1)]. These clauses are widely different in language, scope and purpose, and a varying body of doctrines and tests have grown around them interpreting, extending or restricting, from time to time, their operation and application in the context of the expanding American commerce and industry, and we are of opinion that (1) 337 U.S. 154. not much help can be derived f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
