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TMI Blog1973 (12) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of India from time to time under the said Act. The assessee was assessed under section 13(5) of the Act, originally, to pay Central sales tax on the turnover of the above two minerals. It went up in appeal. The appellate authority found that there was no proper investigation in this case and so it remanded it to the assessing officer to find out whether there was a valid acquisition order under the Central Act of 1948 in respect of the supply made by the assessee. After the remand, the assessing officer, on examination of the papers produced by the assessee, came to the conclusion that it had failed to prove that the prescribed substance was supplied to the Government against any acquisition order. The assessing authority held again that the transactions amounted to sales within the meaning of the Central Act and was chargeable to sales tax under it. The appeal filed by the assessee as also the first revision failed. The matter was taken up in second revision before the Tribunal. The Tribunal also dismissed the revision, holding that the transactions in question were sales. On being asked to refer a case to this court, it has done so under section 25(1) of the Act. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nybody else without the permission of the Central Government. 6.. It would thus be seen that on the facts found and relied on by the Tribunal to an appreciable extent freedom of contract was controlled. Many kinds of freedom which were available to a contracting party in the nineteenth century during the laissez-faire theory were not available and were curtailed as new theories of social justice and social philosophy advanced. The principles of law laid down by the Supreme Court in the various decisions, some of which will be adverted to hereinafter in this judgment show that if a person's property is compulsorily acquired or the purported sale is as a result of compulsion brought about by the law leaving no field or element of a volition or consensus of agreement between the parties, then the transaction is not a sale within the meaning of the Act or the Central Sales Tax Act. But merely truncating the field of freedom leaving still a considerable ground for operation of the volition and exercise of one's power to agree or not to agree cannot take away the transaction from the realm of sale and save it from the charge of sales tax. The freedom to sell a commodity at a price dicta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o in the assessment order clearly show that a good deal of field was left to be covered by the agreement between the parties. In accordance with the recitals in the certificate the compulsion on the assessee was to supply the materials to the Atomic Energy Department of the Government of India and not to anybody else unless permitted by the Government. The prescribed substances were under the direct control of the Government of India. Their extraction, storage and supply were also controlled. Although as to price it is not recorded in any of the orders that it was fixed, I shall assume in favour of the assessee that the price must have been fixed because such materials could not be allowed to be supplied to the Government at prices to be dictated by the mine-owner. It is, therefore, clear that to an appreciable extent the freedom of contract had been curtailed. Yet, it was open to the assessee-company not to enter into a transaction of sale at all with the Government of India. It could have refused to extract the prescribed materials and supply them to the Government of India. There is nothing to indicate that the supply was under any control order, direction or law which did not l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifficulty of providing for every eventuality have shaken fervour for freedom of contract as there was during the nineteenth century. The economic environment has changed. The individual freedom is to be reconciled with adequate performance by the Government of its functions in a highly organised society. Delimiting areas for transactions or parties or denoting price for transactions are all within the area of individual freedom of contract with limited choice by reason of ensuring the greatest good for the greatest number by achieving proper supply at standard or fair price to eliminate the evils of hoarding and scarcity on the one hand and availability on the other." A passage from the minority judgment of Hidayatullah, J. (as he then was), in the case of New India Sugar Mills Ltd.[1963] 14 S.T.C. 316 (S.C.). has been quoted at page 255. This case was considered by the Supreme Court in Andhra Sugars Ltd. v. State of Andhra Pradesh[1968] 21 S.T.C. 212 (S.C.). Bachawat, J., speaking for the court, had said that 'the decision in the New India Sugar Mills Ltd.[1963] 14 S.T.C. 316 (S.C.)., was not to be treated as an authority for the proposition that there can be no contract of sale ..... X X X X Extracts X X X X X X X X Extracts X X X X
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