9911796707
TMI Blog1995 (2) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assistant Commissioner (which deleted the levy of said surcharge), and determined the quantum of abovesaid surcharge slightly less than that arrived at in the original assessment made by the assessing authority. The Joint Commissioner determined the said quantum at the following figures: Rs. 1986-87 10,731 1987-88 22,767.18 1985-86 3,798 Aggrieved by the said levy, these appeals have been preferred by the assessee. 4. Admittedly the relevant sales made by the assessee, on whose turnovers, the abovesaid surcharges were levied, were made to Lipton India Limited, whose factory is at Trichy. The goods that were sold were rice bran oil produced by the assessee at Oorakkarai, Musiri taluk, which is the place of business of the assessee and pursuant to the sales, they were sent by lorry to the abovesaid Trichy factory of the abovesaid buyer. Admittedly, under the Act, surcharge is leviable if the sale has taken place at Trichy and not, if it is at Oorakkarai. As per the agreement between the seller and buyer, the sales were no doubt f.o.r. Trichy. The original assessing authority, viz., the Deputy Commercial Tax Officer, Musiri, while making the revised assessment un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the buyers' premises, the levy of surcharge was squarely warranted." The Joint Commissioner also relied on the order dated December 2, 1981, of the Additional Bench of the Madras Tribunal in T.A. No. 457 of 1981. 5-A. It appears that in the said case in T.A. No. 457 of 1981 the sellers at Arcot made out bills at Arcot (a non-surcharge area), sold their products to the buyers at Madras (a surcharge area) and that the goods had been delivered at Madras at the sellers' own risk. Further, it appears that in that case, the goods were future goods since they were not in existence at the time of the contract and it had to be manufactured thereafter. It appears that in such a context, the Tribunal held that the contract got concluded at the time of delivery of goods at Madras and that hence surcharge was attracted. In other words, it appears that according to the Tribunal since the property passed on, the contract becomes concluded at the time of the delivery of goods at Madras and hence surcharge was attracted. 6.. But this reasoning is not correct. The passing of property has no relevance to fix the situs of sale in view of what is contained in section 5(1) of the Act. This is also cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Act, to have taken place in the State, wherever the contract of sale or purchase might have been made, if the goods are within the State" (i) in the case of specific or ascertained goods, at the time the contract of sale or purchase is made ; and (ii) in the case of unascertained or future goods, at the time of their appropriation to the contract of sale or purchase by the seller or by the purchaser, whether the assent of the other party is prior or subsequent to such appropriation." The abovesaid section 5 runs as follows: "Section 5. Place of sale or purchase.-(1) For the purpose of this Act, the sale or purchase of goods (including motor spirit) shall be deemed to have taken place in the area in which this Act is in force, wherever the contract of sale or purchase might have been made, if the goods are within such area" (i) in the case of specific or ascertained goods, at the time the contract of sale or purchase is made ; and (ii) in the case of unascertained or future goods, at the time of their appropriation to the contract of sale or purchase by the seller or by the purchaser, whether the assent of the other party is prior or subsequent to such appropriation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the situs of sale under section 5(1) of the Act or under section 4(2) of the Central Sales Tax Act or under the abovesaid Explanation (3)(a) to section 2(n) of the Tamil Nadu General Sales Tax Act. 11-A. In dealing with section 4(2) of the Central Sales Tax Act this Court also observed in [1967] 20 STC 150 (Larsen and Toubro Ltd. v. Joint Commercial Tax Officer) at page 191 thus: ".........Any other test like right of inspection or rejection, the terms like, f.o.r. or f.o.b. or c.i.f., passing of property in the goods will be irrelevant for purposes of section 4(2)(b)." In relation to section 4(2) of the Central Sales Tax Act, the same view has also been expressed in Fairmacs Trading Company v. State of Tamil Nadu [1978] 41 STC 157 (Mad.), South India Automotive Corporation Private Limited v. State of Tamil Nadu [1980] 46 STC 1 (Mad.) and Arcot Mills Limited v. State of Tamil Nadu [1984] 55 STC 356 (Mad.). In [1980] 46 STC 1 (Mad.) (South India Automotive Corporation Private Limited v. State of Tamil Nadu) it was also emphasized that the assent spoken to in section 4(2)(b) is not sine qua non to fix up the location for the sale. The relevant observation in [1984] 55 STC 356 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 23 of the Sale of Goods Act, which speaks of sale of unascertained goods and appropriation at page 163, it is also stated, the appropriation may be and often is quite distinct from delivery. Section 23(2) of the Sale of Goods Act also says that where the seller delivers the goods to a carrier for the purpose of transmission to the buyer and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract. Thus, the said section 23(2) gives statutory recognition to the rule that where the goods are delivered to a carrier for the transmission to a buyer, the carrier is presumed to be the buyer's agent, not only to take delivery, but to assent to the appropriation to the contract of the goods so delivered. In the present case, admittedly, the goods were sent through the lorry from the seller's place to the buyer's place. So, when the goods are thus delivered to the carrier, then itself the appropriation takes place. If so, at the time of appropriation, the goods in the present case were only at Oorakkarai village in Musiri taluk. Therefore, it is clear that surcharge is not leviable in the present case. That is why even in the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
