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TMI Blog1935 (10) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... batement or deduction whatever, except (in the case of goods imported) of the amount of the duties payable on the importation thereof : or (b) where such price is not ascertainable, the cost at which goods of the like kind and quality could be delivered at such place, without any abatement or deduction except as aforesaid. 3. It is rather curious that both sub-sections refer to price or cost of goods of the like kind and quality, and do not refer to the actual goods, the subject of the transaction in question; but it is conceded that where there is a sale falling within the terms of Sub-section (a) of specific goods, the price of those goods is the real value, and it is not necessary to consider the price of other goods of the like kind and quality. Perhaps a literal reading of the section can be complied with by saying that specific goods must be of the like kind and quality to themselves. It is clear also that Sub-section (b) only applies where you cannot ascertain the wholesale cash price referred to in Sub-section (a). The section was recently construed and discussed by the Privy Council in the case of Vacuum Oil Co. v. Secretary of State for India (1932) L.R. 59 I. A. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght and insurance in the first instance, but debit those charges against the appellants. The important matter to consider is what the dealings are between the plaintiffs and their customers in India. The evidence is that the plaintiffs are mere importers. They arrange for the sale of the cars in India through various agents. They have one principal agent in Bombay city, namely the Ford Automobiles (India) Ltd., and they have other distributing agents in other parts of India. What happens in practice is this. The various distributing agents in India inform the plaintiffs what their requirements will be for the purchase of cars, and at intervals, say once or twice a month, the plaintiffs send to Canada an order for such number of cars as their distributing agents have intimated that they are ready to take. The price which the distributors pay is not fixed, or indeed discussed, at the time when the order for a car is given; but when the car arrives in Bombay the plaintiffs fix the retail price at which the different models are to be sold in India. That price is published in a list which is available to all the dealers, and the price which the plaintiffs charge to the dealers is that r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, because there is a plain distinction here between the retail price fixed for the dealers, and that price less twenty per cent, which the dealers have to pay, the latter price being the wholesale price. There is no question of any trade discount in this case, because it was a net price, and I think the words in the section less trade discount mean less trade discount, if any . It is also quite plain that the price was a cash price, and that is not disputed. So that taking the words of the section as they stand, it seems to me that this case plainly falls within the exact words of Sub-section (a), provided that the price was the price of the goods. Mr. Coltman argues that the sale does not fall within the words of the subsection as construed by the Privy Council in the case to which I have referred, because the price includes certain post-importation charges, and is not therefore, the price only of the goods. The learned Judge in the Court below agreed with that view and held that there are two items of post-importation charges, for which some deduction must be made from the sale price in order to ascertain the wholesale cash price. To that part of the decision there are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the purchase price of the car. We must, in my opinion, take a business view of the transaction and determine whether the sale price is in a business sense the price of the goods or includes a charge for services rendered which prevents the price being fairly considered to be the price of the goods. Mr. Coltman did not confine his argument to post-importation charges, though he laid more emphasis on them having regard to the views expressed by the Privy Council, but in opening the case he complained that the price charged by the plaintiffs covered the overhead charges of the plaintiffs, e.g., office expenses and advertisement charges, as well as the plaintiffs' profit, and he said, with a certain amount of force, that it was rather hard to be taxed on those charges. The answer to that is that we have to construe the Act. Every normal sale between merchants must show a profit to the vendor, and, therefore, cover his overhead charges, but these are really pre-importation charges. The fact that the price also includes some slight post-importation service, such as free delivery within the place of importation, cannot in my opinion operate to prevent the sale price being held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lesale character ? The evidence of Mr. Corey is that the prices were not fixed at the time the orders were placed, that the prices could be changed by the plaintiffs as they liked, that they were from time to time changed and were published in price-lists which were available to persons in the trade. According to Mr. Corey, the price became fixed on the arrival of the goods, and the retailers who had placed orders with the plaintiffs knew what the price payable by them was on arrival by looking at the published price-list, which was the price list in circulation at the time of the arrival of the goods; and according to Mr. Corey, the price becoming payable on arrival, no delivery would be effected of the goods until that price was paid. That being so, it seems to me clear that the sale became an effective sale upon the arrival of the goods, and the appropriation of those goods to the orders with the assent of both the parties, and the payment of the price by the retailers. The evidence further is that the price was paid within two or three days of the arrival, and delivery was effected on payment of the price. In Bombay delivery was effected by sending the cars to the place of busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. Mr. Coltman has argued that Section 30, Sub-section (a), is intended to apply only to, what he calls, staple articles, such as rice, sugar and so forth, and that the goods which are the subject-matter of this case, namely, motor cars, are not of the class of goods which would fall within the sub-section. He relies on a passage in the judgment of their Lordships of the Privy Council in Vacuum Oil Co. v. Secretary of State for India, above referred to, which is in these terms (p. 266) :- The wholesale cash price primarily in view is, they cannot doubt, that price current for staple articles, the amount of which, if not a subject of daily publication in the press, is easily ascertainable in appropriate trade circles. Mr. Coltman has argued that you could not easily ascertain the price at which motor-cars of this description were saleable. In my opinion, that is not in accordance with the evidence. The evidence is that price-lists were published from time to time, and that they were accessible to the traders; and, in my opinion, it is quite clear on that evidence that any retailers, who were desirous of placing orders with the plaintiffs, were in a position to know what price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o place orders with the manufacturers in Canada; and, in my opinion, all the overhead charges which were referable to the transaction between the plaintiffs and the defendant in this case had in fact been incurred before the arrival of the goods in this country. The wholesale cash price at the time and place of importation was in fact paid on the arrival of the goods; and, in my judgment, no charges, overhead or otherwise, were incurred by the plaintiffs subsequently in reference to the transaction in question. 16. The price-lists, which were issued by the plaintiffs themselves, in my opinion, themselves afford excellent evidence of the fact that there was a wholesale cash price at the time and place of importation. Those price-lists show that the price was a net price, f. .r. at the main ports of entry. They state the prices at which the retailers were allowed to sell to their customers; they state the discount of twenty per cent; and they state the distributors' net price payable as mentioned after deducting the allowances which the plaintiffs were prepared to make to the retailers in respect of the assembling of the cars. Those price-lists themselves appear to me to show, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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