Appeal No 542 of 1962
Appeal from the judgment and order dated April 7 1960 of the Andhra Pradesh High Court in Tax Revision case No 27 of 1958
Setalvad K Srinivasamurthy and Naunit Lal for the appellant
ARanganadham Chetty and B R G K Achar for the respondent
February 6 1964
The Judgment of the Court was delivered by SHAH J
With certificate of fitness granted by the High Court of Andhra Pradesh this appeal is preferred by Shree Bajrang Jute Mills Ltd The appellant is engaged in the manufacture of jute goods and is a registered dealer under the Madras General Sales Tax Act
For the assessment year 1954 55 the appellant submitted its return for sales tax claiming a deduction of Rs 2180118 1 3 from the turnover in respect 693 of the jute goods supplied by rail to the Associated Cement Company Ltd hereinafter for the sake of brevity called the ACC under despatch instructions from that Company
The Commercial Tax Officer rejected the claim of the appellant for deduction and that order was confirmed in appeal to the Deputy Commissioner of Commercial Taxes
In appeal to the Sales Tax Appellate Tribunal the order was reversed the Tribunal holding that the appellant was entitled to exemption in respect of the turnover for the goods supplied to the ACC A revision petition presented against the order to the High Court of Andhra Pradesh was heard with a large number of other petitions which raised certain common questions
The High Court reversed the order of the Tribunal and restored the order passed by the Deputy Commissioner of Commercial Taxes
The factory of the appellant is situated at Guntur
The ACC owns cement factories at many places including one at Tadepalli in the State of Andhra called the Krishna Cement Works and for the purpose of marketing its products it requires jute packing bags
For securing a regular supply of jute bags the ACC entered into a contract with the appellant of which the following four conditions are material  1
All the goods are sold FOR Guntur unless otherwise expressly stated in this contract
Goods to be packed  well pressed and marked in bound bales of per each
Payments to be made in cash in exchange for Mills Delivery Order on sellers on due date or for Railway receipts or for Dock receipts or for Mate s receipts which Dock receipts or Mate s receipts are to be handed by a Dock s or Ship s Officer to the seller s representative
The buyers agree that the property in the goods sold shall not pass from the sellers to the buyers so long as the sellers are in possession of any bills of lading railway receipts dock warrants or Mate s receipts or any other document of 694 title whether such documents are in the names of sellers or buyers until payment is made in full
a The buyers agree that the risk of loss deterioration or damage in the goods during transit whether by land or canal or sea or when the goods are in the custody of the seller or any third person in a warehouse dock or any premises shall be borne by the buyers notwithstanding that the property in the goods does not pass to the buyers during such transit or custody As and when the gunny bags were needed for packing its products the ACC issued despatch instructions calling upon the appellant to send jute bags by railway to the cement factories of the ACC outside the State of Andhra
Pursuant to those instructions the appellant loaded the goods in the railway wagons obtained railway receipts in the name of the ACC as consignee and against payment of the price delivered the receipts to the Krishna Cement Works Tadepalli which it is common ground was for the purpose of receiving the railway receipts and making pay ment the agent of the ACC
It is also common ground that the jute bags were sold to the ACC for the purpose of packing cement by the factories of the ACC to which they were sent and not for any other purpose
The assessing authority and the Deputy Commissioner held that as the railway receipts were delivered to the agent of the buyer within the State of Andhra and price was also realized from the agent of the buyer within the State the goods must be deemed to have been delivered to the buyer in the State of Andhra and the appellant was liable to pay sales tax on the price of the goods sold
With that view the High Court agreed Under the Government of India Act 1935 the Legislatures of every Province could legislate for levying tax on sales of goods in respect of all transactions whether the property in the goods passed within or without the Province provided the Province had a territorial nexus with one or more elements constituting the transaction of sale  Poppat 695 Lal Shah vs The State of Madras1 and The Tata Iron  Steel Company Ltd vs State of Bihar1
But this resulted in simultaneous levy of sales tax by many Provinces in respect of the same transaction each fixing upon one or more element constituting the sale with which it had a territorial nexus
With the dual purpose of maintaining an important source of revenue to the States and simultaneously preventing imposition of an unduly heavy burden upon the consumers by multiple taxation upon a single transaction of sale the Constitution made a special provision imposing restrictions upon the legislative power of the States in article 286 which as originally enacted ran as follows  1 No law of a State shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place a outside the State or b in the course of the import of the goods into or export of the goods out of the territory of India
Explanation
For the purposes of sub clause a a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State
2 Except in so far as Parliament may by law otherwise provide no law of a State shall impose or authorise the imposition of a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter State trade or commerce  Provided that the President may by order direct that any tax on the sale or purchase of goods which 1  2  696 was being lawfully levied by the Government of any State immediately before the commencement of this Constitution shall notwithstanding that the imposition of such tax is contrary to the provisions of this clause continue to be levied until the thirty first day of March 1951
3 No law made by the Legislature of a State imposing or authorising the imposition of a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent After the enactment of the Constitution by a Presidential Order the Provincial Sales Tax Acts were made to accord with the restrictions imposed by article 286 of the Constitution
It is manifest that by article 286 the legislative authority of the States to impose taxes on sales and purchases was restricted by four limitations in respect of sales or purchases outside the State in respect of sales or purchases in the course of imports into or exports out of India in respect of sales or purchases which take place in the course of interState trade or commerce and in respect of sales and purchases of goods declared by Parliament to be essential for the life of the community
These limitations may overlap but the power of the State to tax sale or purchase transactions may he exercised only if it is not hit by any of the limitations
The restrictions are cumulative
The sales in the present case are not sales which have taken place in the course of inter State trade or commerce
The only point of contest is whether they are outside the State  of Andhra
It is now well settled that by article 2861 as it stood before it was amended by the Constitution Sixth Amendment Act 1956 sales as a direct result of which goods were delivered in a State for consumption in such State ie the sales falling within the Explanation to article 2861 were fictionally to be regarded as inside that State for the purpose of cl
1 a and so within the taxing 697 power of the State in which such delivery took place and being outside all other States exempt from sales tax by those other States  Tobacco Manufacturers India Ltd vs The Commissioner of Sales tax Bihar Patna1 Indian Copper Corporation Ltd The State of Bihar and others 2 and The State of Kerala and others vs The Cochin Coal Com pany Ltd3
But the Explanation is not exhaustive of what may be called inside sales
Clause 1a excludes from the reach of tile power of the States sales outside the State but it does not follow from the Explanation that it localises the situs of all sales
The power of the State under Entry 54 List II of the Seventh Schedule to tax sales not falling within cls
1b 2 and 3 which are outside the Explanation and which may for the sake of brevity be called 4non Explanation  sales remains unimaired
It is not necessary for the purpose of this case to express an opinion whether the theory of territorial nexus of the taxing State with one or more elements which go to make a completed sale authorises since the promulgation of the Constitution the exercise of legislative power under Entry 54 List II of the Seventh Schedule to tax sales where property in goods has not passed within the taxing State
The question which then falls to be determined is whether the sales to the ACC by the appellant may be regarded as non Explanation sales
There can be no doubt that if the goods were delivered pursuant to the contracts of sale outside the State of Andhra for the purpose of consumption in the State into which the goods were delivered the State of Andhra could have no right to tax those sales by virtue of the restriction imposed by article 2861 a read with the Explanation
The facts found by the taxing authorities clearly establish that property in the goods despatched by the appellant passed to the ACC within the State of Andhra when the railway receipts were handed over to the agent of the ACC against payment of price
The question still remains  were 1  2  3  698 the transactions non Explanation sales  ie falling outside the Explanation to article 2861 To attract the Explanation the goods had to be actually delivered as a direct result of the sale for the purpose of consumption in the State in which they were delivered
It is not disputed that the goods were supplied for the purpose of consumption outside the State of Andhra and in the States in which they were supplied
It is submitted that the goods were actually delivered within the State when the railway receipts were handed over to the agent of the buyer
But the expression a actually delivered in the context in which it occurs can only mean physical delivery of the goods or such action as puts the goods in the possession of the purchaser  it does not contemplate mere symbolical or notional delivery eg by entrusting the goods to a common carrier or even delivery of documents of title like railway receipts
In C Govindarajulu Naidu  Company vs State of Madras1 Venkatarama Ayyar J dealing with the concept of actual delivery of goods so as to attract the application of the Explanation to article 2861 a rightly observed In the context it can mean only physical delivery and not constructive delivery such as by transfer of documents of title to the goods
The whole object of the Explanation is to give a power of taxation in respect of goods actually entering the State for the purpose of use therein and it will defeat such a purpose if notional delivery of goods as by transfer of documents of title to the goods within the State is held to give the State a power to tax when the good are actually delivered in another State
 A similar view has been expressed in two other cases Ms Capco Ltd vs The Sales Tax Officer and another 2  and Khaitan Minerals vs Sales Tax Appellate Tribunal for Mysore 3
1 AIR 1953 Mad
3 AIR 2 AIR 1960 AM
699 Counsel for the respondent State relied upon section 39ofthe Indian  which provides inso far as it is material by the first sub section that wherein pursuance of a contract of sale the seller is authorisedto send the goods to the buyer delivery of the goods toa carrier for the purpose of transmission to the buyer is prima facie deemed to be delivery of the goods to the buyer
But that provision will not make mere delivery of the railway receipts representing title to the goods actual delivery of goods for the purpose of article 286
The rule contained in section 391 of the Indian raises a prima facie inference that the goods have been delivered if the conditions prescribed thereby are satisfied it has no application in dealing with a constitutional provision which while imposing a restriction upon the legislative power of the States entrusts exclusive power to levy sales tax to the State in which the goods have been actually delivered for the purpose of consumption
The High Court was therefore in error in inferring from the fact that the property had passed within the State of Andhra against delivery of the railway receipts that the goods were actually delivered within the State
If the inference raised by the High Court that the goods were actually delivered within the State of Andhra cannot be accepted on the facts found there is no escape from the conclusion that the State of Andhra had no authority to levy tax in respect of those sale transactions in which the goods were sent under railway receipts to places outside the State of Andhra and actually delivered for the purpose of consumption in those States
The appeal must therefore be allowed
The order of the High Court is set aside and the order of the Appellate Tribunal is restored
The appellant to get its costs in this Court and the High Court from the respondent State


Summary:
The appellant carrying on business as a manufacturer of jute goods with its factory at Guntur used to send jute bags by railway to the cement factories of the ACC outside the State of Andhra
For securing a regular supply of jute bags the ACC entered into a contract with the appellant and under the despatch instructions from that company the appellant loaded the goods in the railway wagons obtained railway receipts in the name of the ACC as consignee and against payment of the price delivered the receipts to the Krishna Cement Works Tadepalli which was for the purpose of receiving the railway receipt and making payment the agent of the ACC From the amounts shown as gross turnover in the return for the assessment year 1954 55 the appellant claimed reduction of certain amounts in respect of the goods supplied by rail to the ACC outside the State of Andhra Pradesh under its despatch instructions
The Commercial Tax Officer and the Deputy Commissioner of Commercial Taxes disallowed the claim and held that as the railway receipts were delivered to the agent of the buyer within the State of Andhra and price was also realized from the agent of the buyer within the State goods must be deemed to have been delivered to the buyer in the State of Andhra Pradesh and the appellant was liable to pay tax on the sales
On appeal this order was reversed by the Appellate Tribunal
In revision the High Court restored the order of the Deputy Commissioner of Commercial Taxes
The question for determination in this appeal was whether the sales to the ACC by the appellant may be regarded as non Explanation sales ie falling outside the Explanation to article 2861
Heldi If the goods were delivered pursuant to the contracts of sale outside the State of Andhra for the purpose of consumption in the State into which the goods were delivered the State of Andhra could have no right to tax those sales by virtue of the restriction imposed by article 2861a read with Explanation
To attract the Explanation the goods had to be actually delivered as a direct result of the sale for the purpose of consumption in the State in which they were delivered
The expression actually delivered  in the context in which it occurs can only mean physical delivery of 692 the goods or such action as puts the goods in the possession of the purchaser it does not contemplate mere symbolical or notional delivery
CGovindarajulu Naidu  Co vs State of Madras AIR 1953 Mad
116 Ms Capco Ltd vs Sales Tax Officer AIR 1960 All
62 and Khaitan Minerals vs Sales Tax Appellate Tribunal for Mysore AIR followed
Poppat Lal Shah vs State of Madras   Tata Iron  Steel Co Ltd vs State of Bihar   Tobacco ManufacturersIndia Ltd vs Commissioner of Sales Tax Bihar 1961 2 SCR106 Indian Copper Corporation Ltd vs State of Bihar 1961 2 SCR276 and State of Kerala vs Cochin Coal Co Ltd 1961 2 SCR 219 referred to
iiSection 39 of the Indian will not make mere delivery of the railway receipts representing title to the goods actual delivery of goods for the purpose of article 286
The rule contained is section 391 has no application in dealing with a constitutional provision which while imposing a restriction upon the legislative power of the States entrusts exclusive power to levy sales tax to the State in which the goods have been actually delivered for the purpose of consumption