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TMI Blog1959 (9) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... or the sale of motor cars to its sub-dealers, who resided outside the State of Madras and who were bound under the terms of their contract with the assessee to sell those cars within their respective areas, all of which were outside the State of Madras. Those cars were however delivered to the sub-dealers or their agents at Madras and were subsequently taken by those sub-dealers outside the State for sale within their respective areas. The assessee contended before us, in his application preferred under section 12-B of the Act, that neither of these items should have been included in its assessable turnover. Normally we should have held that the question, whether each of these items is assessable to sales tax, is concluded by the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to convince us that those earlier decisions of this Court, to each of which one of us was a party, required reconsideration. We have heard him in full as if the questions at issue were res integra. We are, however, unable to accept his contention that those decisions require reconsideration. We should also mention that the decision of this Court in Ashok Leyland case [1957] 8 S.T.C. 210. is under appeal to the Supreme Court. In these circumstances we do not consider it necessary to discuss in full all the contentions the learned counsel urged before us. As we said, Ashok Leyland case(1) is a direct decision of this Court on one of the two questions at issue, whether the sales of the motor cars were intra-State sales or were sales in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was regulated in the relevant period by Article 286(2) as it stood before it was amended. Mr. Venkatasubramania Aiyar referred to Queen v. Wilkinson; ex parte Brazell, Garlick and Co.85 C.L.R. 467., the principles laid down in which were quoted with approval by Das, J., as he then was, in his separate and dissenting judgment in State of Travancore-Cochin v. Shanmugha Vilas Cashew-nut Factory[1953] 4 S.T.C. 205 at page 238. Mr. Venkatasubramania Aiyar urged that neither that decision nor the observations of Das, J., were considered in any of the three decisions of this Court including that in Ashok Leyland's case[1957] 8 S.T.C. 210. Even so, we are unable to accept his contention that those decisions require reconsideration. No dou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of inter-State trade. It was apparently after considering this case also that the majority of the learned Judges held in State of Travancore-Cochin v. Shanmugha Vilas Cashew-nut Factory [1953] 4 S.T.C. 205., that a sale for export was not a sale in the course of export within the scope of Article 286(1)(b). That principle was re-affirmed by Das, J., himself as acting Chief Justice in State of Madras v. Gurviah Naidu[1955] 6 S.T.C. 717., in explaining the scope of the expression "in the course of ". We feel bound by the principles laid down by the Supreme Court, though those decisions were with reference to sales within the scope of Article 286(1)(b) of the Constitution. We do not feel justified at this stage in enlarging the scop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchases the goods which he subsequently exports, it may well be held that the purchase was in the course of the export. Indeed, one of the learned Judges of the Supreme Court, Das, J., took that view, though the majority took a contrary view. But the learned Chief justice of India, who delivered the judgment on behalf of the majority, took up this vary question and held that such a purchase would not be covered by the exemption. This is conclusive on this question." It is on similar considerations we have to hold that it is not permissible at this stage to decide the question at issue, even with reference to Article 286 (2) Of the Constitution as it stood then, by applying either the Australian test or the American test to which we have re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion. The main contention of Mr. Venkatasubramania Aiyar was that Act XVII of 1954 was beyond the legislative competence of the Madras Legislature. That was the very contention negatived in Sundararajn and Co., Ltd. v. State of Madras[1956] 7 S.T.C. 105. Learned counsel referred to the well-recognised principle re-affirmed by the Privy Council in Motor Transport Commissioner v. Antill Ranger and Co., Pty. Ltd.[1956] A.C. 527., that a Legislature cannot give itself legislative power to tax something if in reality it did not have that legislative competence. Learned counsel urged that what section 8-13 of the Act provided for was the collection of a tax, and, if what was collected was a tax, it could not be brought within the scope of Ent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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