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TMI Blog1966 (12) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1964. The amendment was not retrospective, but it is admitted by Mr. Shri Chand Goyal, counsel for the petitioner-firm, that the dissolution in the present case took place on the 30th July, 1964. The date of dissolution being subsequent to the amendment of the statute, there can be no manner of doubt that the point which has been raised cannot possibly be sustained. Mr. Goyal has not been able satisfactorily to meet the effect of the amendment of the law. 2.. The second point, however, which was raised before the Assessing Authority has a good deal of force and must be sustained. It is common ground that the sales tax which has been assessed related to supply of bricks which had been made by the petitioner-firm to various consumers who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons who held the permits, the transactions could not be regarded to be sales within the meaning of clause (h) of section 2 of the Punjab General Sales Tax Act, 1948. "Sale" is defined to mean any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge. 4.. In M/s. New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar[1963] 14 S.T.C. 316; A.I.R. 1963 S.C. 1207., the question was whether a sale by the assessee of sugar despatched by them to the Provincial Government of Madras in compliance with the directions issued by the Controller in exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tas of sugar for any specified Province or area or market and to issue directions to any producer or dealer to supply sugar to such Provinces, areas or markets, to such persons or organisations, in such quantities, of such types or grades, at such times, at such prices and in such manner as may be specified by the Controller, and sub-clause (2) provided that every producer shall, notwithstanding any existing agreement with any other person, give priority to, and comply with the directions issued to him under sub-clause (1). Clause 11 provided for the penalties for contravention of the provisions of the Order. 5.. The admitted course of dealings between the parties in the case was that the Governments of various consuming States used to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a quotation had been extracted from Benjamin in the 8th Edition of his work on "Sale": "To constitute a valid sale there must be a concurrence of the following elements, viz., (1) parties competent to contract; (2) mutual assent; (3) a thing, the absolute or general property in which is transferred from the seller to the buyer; and (4) a price in money paid or promised." It was consequently held that the transactions of despatches of sugar by the assessees pursuant to the directions of the Controller were not the result of any contract of sale and the manufacturers acting under the Control Order were left with no volition. The manufacturer could not decline to carry out the Order; if he did so he was liable to be punished for breach of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise no volition in the matter of supply of the quantity or of the period when it is to be supplied. The price is also controlled; but that may not be of material consequence. What is really important is that as soon as a permit is produced before the manufacturer he is bound to supply the bricks in accordance with the permit and he can neither refuse to supply the quantity which is contained in the permit nor vary the same. The element of volition is, therefore, lacking in the same way it was lacking in the case decided by the Supreme Court. 7.. A faint line of distinction has been suggested, so far as the present case is concerned, from the facts in the case decided by their Lordships. That distinction is that there it was the Suga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bricks according to the permit issued by the appropriate authorities. He says, therefore, that having submitted to that condition or arrangement with the authorities, the manufacturer or dealer cannot later on say that his volition is in any way being fettered or hampered by the terms of the licence. Such an argument, however, cannot be of much assistance in deciding whether the law which has been laid down by the Supreme Court in New India Sugar Mills' case[1963] 14 S.T.C. 316; A.I.R. 1963 S.C. 1207. would be applicable to the matters before me or not. As I am of the opinion that the present cases are governed by the majority decision in New India Sugar Mills' case[1963] 14 S.T.C. 316; A.I.R. 1963 S.C. 1207., I would allow these petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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