Case: M/S. Bharat &amp; Company Vs. Trade Tax Officer

order dated 9th August, 2000 passed by the Tribunal and its order by the High Court on 28th September, 2000 was malafide and contumacious. It was said that false statements had been made by the respondents to the effect that the goods had been released to the appellant on 31st October, 2000. It was said that the order of re-seizure was without jurisdiction. It was pointed out that the security bonds furnished by the appellant are still with the respondents.16. The respondents have submitted that the alleged purchaser had not appeared at any stage of proceedings and enquiry revealed that it was no longer an existing firm. According to the respondents no documents had been filed at any stage by the appellant in support of its claim of ownership to the gambier. It was further submitted that issue of title was pending in the Revisional Application filed by the appellant and the respondents from the order of the Tribunal dated 9th August, 2000. It was said that the documents which were produced by the appellant were interpolated and contradictory and that the appellant had not come to court with clean hands. 17. The High Court, dismissed the application on the ground that the title in the goods had not passed to the purchaser although the price for the goods had not been paid. It was also said that M/s. Kamakhya Lime Industries and M/s. Maa Kamakhya Lime Industries were one and the same and that therefore the outstanding dues of M/s. Maa Kamakhya Lime Industries could be recovered from the goods in question. The appellant filed an application for review of the judgment which was dismissed by the High Court.18. Initially the special leave petition had been filed from the order dismissing the application for review. Subsequently, an application for amendment of the petition was filed including a challenge to the order of the High Court. At the hearing the application for amendment was not opposed and is allowed. 19. In our opinion, the High Court was wrong in dismissing the appellants petition. The Trade Tax Tribunal as early as on 31st March, 2000 had held that the appellant had the locus standi to ask for the release of goods because the appellant was the owner of the goods. The decision of the Tribunal was not challenged by the respondents. The decision of the Tribunal not being challenged, the issue of title was concluded in the appellants favour. In the face of this order, it was not open to Assistant Commissioner, Trade Tax on remand to reject the application of the appellant on the ground that it was not the owner of the goods. The High Court should have considered this aspect of the matter particularly when it had been expressly drawn to the High Courts attention. The High Court was also precluded from re-deciding the same issue between the same parties.20. Besides, the High Courts finding that the ownership of the goods had passed to M/s. Kamakhya Lime Industries only because it had been named in the Consignment Note appears to be incorrect. In Commissioner of Income-Tax, Madhya Pradesh and Bhopal, Nagpur vs. Bhopal Textiles Ltd., Bhopal, AIr 1961 SC 426 , 428, this Court said:- "A railway receipt is a document of title to goods, and for all purposes, represents the goods. When the railway receipt is handed over to the consignee on payment, the property in the goods is transferred. In this case, it is a matter of considerable doubt whether the property in the goods can be said to have passed to the buyers by the mere fact of the railway receipts being in the name of the consignees, as has been held by the High Court." 21. In the second round the Tribunal had directed the release of the goods to the appellant by its order dated 9th August, 2000 subject to furnishing the security of Rs.4 lakhs. The High Court by the interim order passed in the revisional application also directed the seized goods to be released to the appellant on the furnishing of security by its order dated 28th September, 2000. Even according to the respondents the goods were released formally to the appellant against security furnished by the appellant. Yet the last order of seizure in execution of the recovery certificates against the purchaser was issued on the basis that the goods had been released to M/s. Kakakhya Lime Industries. 22. The submission of the respondents that the appellant had come to the Court with unclean hands is unacceptable. On the other hand the respondents have mis-directed themselves by seeking to question the appellants ownership in the property to the goods. That could not have been in issue because unless ownership of the gambier was with the appellant, no title could have been transferred to the purchaser by it. [See: Section 27 of the Sale of Goods Act, 1930] The enquiry conducted by the TTO as to the business of the appellant, the existence of its office in Mumbai, etc. was therefore not only uncalled for but self defeating. 23. It is true that the respondents have said that the two invoice of the appellant have been prepared bearing the same number but in respect of different quantities of gambier. It is however, nobodys case that the total of the two invoices did not tally with the number of bags in fact found on the truck. No material has been brought on record by the respondents to show that the value of the gambier as on the date of transport was less than that shown on the invoices except for the unsupported estimate of the TTO that the gambier was worth Rs.20 lakhs. The appellant in any event was not concerned with any ineterstate sale that the purchaser might have effected after the delivery. As far as it was concerned, the sale was and intrastate one and subject to Central Sales Tax 1956, and therefore, outside the purview of the State Act.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. It was against this order that the writ petition which culminated in the impugned order was passed. Before we consider the reasoning of the High Court it may be noted that the High Court had issued an interim order staying the sale of the gambier pending the disposal of the writ petition. The writ petition was dismissed on 15th November 2002. The goods have been sold by public auction in February 2003 and according to the respondents, fetched a sum of Rs.The sale was approved by Assistant Commissioner (Trade Tax) on 15th February 2003. The amount of sale proceeds is being held by the respondents.In our opinion, the High Court was wrong in dismissing the appellants petition. The Trade Tax Tribunal as early as on 31st March, 2000 had held that the appellant had the locus standi to ask for the release of goods because the appellant was the owner of the goods. The decision of the Tribunal was not challenged by the respondents. The decision of the Tribunal not being challenged, the issue of title was concluded in the appellants favour. In the face of this order, it was not open to Assistant Commissioner, Trade Tax on remand to reject the application of the appellant on the ground that it was not the owner of the goods. The High Court should have considered this aspect of the matter particularly when it had been expressly drawn to the High Courts attention. The High Court was also precluded fromthe same issue between the same parties.20. Besides, the High Courts finding that the ownership of the goods had passed to M/s. Kamakhya Lime Industries only because it had been named in the Consignment Note appears to be incorrect. In Commissioner ofMadhya Pradesh and Bhopal, Nagpur vs. Bhopal Textiles Ltd., Bhopal, AIr 1961 SC 426 , 428, this Courtrailway receipt is a document of title to goods, and for all purposes, represents the goods. When the railway receipt is handed over to the consignee on payment, the property in the goods is transferred. In this case, it is a matter of considerable doubt whether the property in the goods can be said to have passed to the buyers by the mere fact of the railway receipts being in the name of the consignees, as has been held by the High Court.The submission of the respondents that the appellant had come to the Court with unclean hands is unacceptable. On the other hand the respondents havethemselves by seeking to question the appellants ownership in the property to the goods. That could not have been in issue because unless ownership of the gambier was with the appellant, no title could have been transferred to the purchaser by it.It is true that the respondents have said that the two invoice of the appellant have been prepared bearing the same number but in respect of different quantities of gambier. It is however, nobodys case that the total of the two invoices did not tally with the number of bags in fact found on the truck. No material has been brought on record by the respondents to show that the value of the gambier as on the date of transport was less than that shown on the invoices except for the unsupported estimate of the TTO that the gambier was worth Rs.20 lakhs. The appellant in any event was not concerned with any ineterstate sale that the purchaser might have effected after the delivery. As far as it was concerned, the sale was and intrastate one and subject to Central Sales Tax 1956, and therefore, outside the purview of the State Act.