Case: Bagal Kot Cement Company Vs. State of Mysore

agreement the company was in possession and custody of the goods. It was entering into contracts for sale of cement and selling it. The property in the goods was passed on to the buyers by the company. Under clause (7) it was authorised to collect sales tax both on intra-State and inter-State sales, and to discharge its liability devolving upon it as dealer under the various Sales Tax Acts and Rules. As per clause 13 of the agreement only the difference of price after deducting the companys remuneration was to be credited to the Corporations account.Section 2(b) of the Central Act reads as follows:" "dealer" means any person who carries on the business of buying or selling goods, and includes a Government which carries on such business;""sale" within the meaning of clause (g) means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration. "sale price" under clause (h) means the amount payable to a dealer as consideration for the sale of any goods. On the facts stated above it is abundantly clear that sale was made by the appellant company as it effected transfer of property in the goods to the customers and realized sale price from them by issuing invoices in its own name. The restricted definition of the term dealer in the Central Act is not wide enough to cover all kinds of agents such as brokers or a commission agent simplicter as many of the State Acts include them within their definitions. As for example the term dealer defined in section 2(k) of the Mysore State Act includes "a commission agent, a broker or del credere agent or an auctioneer or any other mercantile a gent by whatever name called, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal;" The term dealer as defined in the Central Act would, however, include a del credere agent or a mercantile agent who carries on the business of buying or selling goods not as an agent simplicter on behalf of the disclosed principal but as a principal visa-vis its customers.8. In Halsburys Laws of England, Fourth Edition, Volume 1, para 71 2 it is stated:"A mercantile agent is one having, in the customary course of his business as such agent, authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods. An agent may be a mercantile agent although he has no general occupation as an agent, or has only one customer, or although his general occupation is that of an independent dealer in the commodity entrusted to him, provided that he acts in the transaction in his capacity as mercantile agent; but he must not be a mere servant or shopman."In para 713 is stated:"A del credere agent is one who, usually for extra remuneration, undertakes to indemnify his employer against loss arising from the failure of persons with whom he contracts to carry out their contracts."9. In the judgment under appeal the High Court repelled the stand of the appellant relying upon the decision of a full Bench of the Madras High Court in Kandula Radhakrishna Rao and others v. The Province of Madras represented by the Collector of West Godavari, Eluru and another(1). Referring to the identical definition of the dealer in the Madras Act Rajamannar, C.J. delivering the judgment on behalf of the Bench has stated at page 723 column 2:"In the case of a commission agent, the accepted mercantile practice is that he has control over or possession of the goods and he has the authority from the owner of the goods to pass the property in and title to the goods. If this is so, undoubtedly when a commission agent sells goods belonging to his principal wit h his authority and consent and without disclosing to the buyer the name of the owner, there is certainly a transfer of property in the goods from the commission agent to the buyer. A business which consists in such transactions ca n properly be described as a business of selling goods. A similar position would arise even in the case of a commission agent buying for an undisclosed principal. A commission agent doing this kind of business would in my opinion, fall within the definition of dealer in the Sales Tax Act. Neither the definition of dealer nor of sale contemplates as a necessary condition, that the goods sold should belong to the person selling or buying. Thee re can be a sale or purchase on behalf of another."10. We agree with the above view of the learned Chief Justice.Mr. D. V. Patel, learned counsel for the appellant heavily relied on the definition of the expression "place of business" given in clause (dd) of section 2 of the Central Act which includes "(i) in any case where a dealer carries on business through an agent (by whatever name called), the place of business of such agent;" Counsel submitted that the above inclusive definition would show that it was the Corporation which was carrying on the business through the appellant company as its agent and for the purpose of the Central Act the place where the business was carried on by the company as the Corporations agent would be the place of the business of the Corporation. On the other hand, learned Additional Solicitor General II pointed out that if the appellant was the dealer within the meaning of section 2(b) then it was not the Corporation which was carrying on the business through it as an agent to attract the definition given in clause (dd). In our judgment it was the appellant company which carried on the business of selling cement although it was acting as selling agents of the Corporation. The Corporation was not the dealer which effected the sales but it was the company which did so.11.

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

Explanation:
0[ds]In our opinion there is no substance in the appellants argument. After having realized the sales tax from the various customers and voluntarily and ex-contractu paid it as per the Return submitted it was ill-advised to take an unsustainable stand of its not being liable to pay sales tax under the Centralcannot be any doubt that the sales of cement made during the period in question in the course of inter-State trade were exigible to sales tax under the Centralfacts were not disputed before us. Rather in the special leave petition it is admitted that the invoices were issued by the appellant company in its ownwould thus be seen from the course of conduct of the appellants business and the terms of agreement that the Company was not a mere commission agent or broker selling the goods on behalf of its principal-the Corporation. There was no privity of contract between the various customers of cement and the Corporation. No property in the goods sold was passed by the Corporation to them. After taking the symbolical delivery of the entire cement produced at the works of the company as per clause (1) of the agreement the company was in possession and custody of the goods. It was entering into contracts for sale of cement and selling it. The property in the goods was passed on to the buyers by the company. Under clause (7) it was authorised to collect sales tax both on intra-State and inter-State sales, and to discharge its liability devolving upon it as dealer under the various Sales Tax Acts and Rules. As per clause 13 of the agreement only the difference of price after deducting the companys remuneration was to be credited to the Corporationsthe facts stated above it is abundantly clear that sale was made by the appellant company as it effected transfer of property in the goods to the customers and realized sale price from them by issuing invoices in its own name. The restricted definition of the term dealer in the Central Act is not wide enough to cover all kinds of agents such as brokers or a commission agent simplicter as many of the State Acts include them within their definitions. As for example the term dealer defined in section 2(k) of the Mysore State Act includes "a commission agent, a broker or del credere agent or an auctioneer or any other mercantile a gent by whatever name called, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal;" The term dealer as defined in the Central Act would, however, include a del credere agent or a mercantile agent who carries on the business of buying or selling goods not as an agent simplicter on behalf of the disclosed principal but as a principal visa-vis itsagree with the above view of the learned Chiefour judgment it was the appellant company which carried on the business of selling cement although it was acting as selling agents of the Corporation. The Corporation was not the dealer which effected the sales but it was the company which did so.