Case: J. V. Gokal &amp; Co. (Private) Ltd Vs. The Assistant Collector, Of Sales-Tax(Inspection) And Othe

observe or perform any provisions of the contract, to terminate the contract forthwith. Clause 11 under the heading "Force Majeure" confers on the Government, in case delivery in whole or in part is prevented or delayed directly or indirectly by any cause of Force Majeure, was strikes, rebellion, insurrection, political disturbances, civil commotion, fire or flood, on account of plague or other epidemics, the right to cancel the contract for the quantities so prevented or delayed. After the sellers entered into the contracts, they obtained the requisite licences from the Government, opened letters of credit, placed orders with foreign companies, engaged a steamer on charter terms, took delivery of the goods from the foreign firms and, when the goods were on the high seas delivered the documents of title to the Central Government against payment and the said Government, taking the licence from the sellers, cleared the goods at the Bombay harbour.14. Let us now scrutinize the terms of the contract to ascertain whether they disclose any intention of the parties that notwithstanding the delivery of the bill of lading against payment the property in the goods should not pass to the Government. The circumstances under which the contracts were entered into between the parties indicate that both the parties were interested to see that property in the goods passed in the ordinary way when the shipping documents were handed over to the Government against payment. The sellers had to meet their liability to the foreign companies with whom they opened letters of credit and the Government must have been anxious to get the title to the goods so that the sellers might not divert the goods towards their other commitments or to other buyers for more tempting prices. Under the contract every safeguard for securing the goods of agreed specifications was provided for in the earlier clauses and therefore there was no reason for postponing the passing of the property in the goods to the buyer till the goods were actually delivered in the port. The sellers on their side would have been anxious that the property should pass when the goods were on the high seas, for otherwise they would be compelled to pay sales tax. Nor are the clauses of the contracts relied upon by the respondents inconsistent with the property in the goods passing in accordance with the mercantile usage. The liability undertaken by the sellers to meet the expenses relating to stevedorage, lighterage where necessary, hiring of cranes, dock dues and pilotage, at the time of delivery of the goods on which reliance is placed to indicate a contrary intention, in our view, has nothing to do with the question raised, for that liability can rest with the sellers even after the property in the goods has passed to the buyers; nor clause 9 to 11 on which strong reliance is placed by the learned counsel are inconsistent with the property in the goods passing to the buyer; they could legitimately be made applicable to a point of time when the property in the goods has not passed to the buyer. If the sellers fail to observe the performance of any provisions of the contracts before the property in the goods passed to the buyer, under clause 9 of the contracts the buyer can cancel the contract. So too, under cl. 11, if any contemplated mishap takes place on the high seas by force majeure, the seller shall send a cablegram to that effect and the buyer is empowered to cancel the whole of the contract or a part of it. This also applies to a point of time before the property in the goods has passed to the buyer. If on the other hand, the seller delivers the shipping documents against payment and thereafter if he does not deliver the goods at the port, the buyer may have other remedies for the recovery of damages etc. But that right is not covered by either cl. (9) or cl. (11) of the contract.A scrutiny of all the terms of the contract does not indicate the intention that the property in the goods shall not pass to the buyer notwithstanding delivery of shipping documents against payment.15. Apart from the terms of the contract, reliance is also placed by the learned counsel for the respondents on the following circumstances :(i) the seller himself chartered the ship; and (ii) the licence issued by the Government was made non-transferable. We do not see how these two facts indicate the contrary intention.If the seller himself chartered a steamer, when the goods he purchased were loaded in the ship, the property in the goods passed to him and therefore he was in a position to sell the same to the Government. The fact that the licence was non-transferable has no relation to the property in the goods passing to the Government. The licence issued by the Government is an exercise of the statutory power under the relevant Act. Whether the petitioner sold the goods to the Government or to a third party, he had to obtain a licence. Indeed in the present case, the licence was given to the seller with the express object of fulfilling the contracts with the Government and was issued several days after the contracts were executed, and indeed the Government took the licence from the seller and cleared the goods through their officer.16. For all the foregoing reasons we hold that the property in the goods passed to the Government of India when the shipping documents were delivered to them against payment. It follows that the sale of the goods by the petitioner to the Government of India took place when the goods were on the high seas.17. That being so, the sales in question must be held to have taken place in the course of the import into India and therefore they would be exempted from sales tax under Art. 286(1) (b) of the Constitution.18. In this view, no other question would arise for consideration.

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

Explanation:
1[ds]9. What does the phrase "in the course of the import of the goods into the territory of India" convey? The crucial words of the phrase are "import" and "in the course of". The term "import", signifies etymologically "to bring in". To import goods into the territory of India therefore means to bring into the territory of India goods from abroad. The word "course" means "progress from point to point". The course of import, therefore, starts from one point and ends at another. It starts when the goods cross the customs barrier in a foreign country and ends when they cross the customs barrier in the importing country. The words were subject of judicial scrutiny by this Court in State ofv. Shanmugha Vilas Cashew Net Factory, 1954 SCR 53  ; (AIR 1953 SC 333  ). Construing these words, Patanjali Sastri, C. J., observed at p. 62 (of SCB) : (at p. 336 of AIR)word "course" etymologically denotes movement from one point to another, and the expression "in the course of" not only implies a period of time during which the movement is in progress but postulates also a connectedrespectfully agree with the aforesaid observations of the learned Judges. The course of the import of the goods may be said to begin when the goods enter their import journey, i.e., when they cross the customs barrier of the foreign country and end when they cross the customs barrier of the importingCourt is State ofv. Bombay Co. Ltd., 1952 SCR 1112 : (AIR 1952 SC 366  ), held that a sale which occasioned the export was a sale that took place in the course of export of the goods. If A, a merchant in India, sells his goods to a merchant in London and puts through the transaction by transporting the goods by a ship to London, the said sale which occasioned the export is exempted under Art. 286 (1) (b) of the Constitution from the levy of sales tax. The same principle applies to a coverse case of goods which occasioned the import of the goods into India. This Court again in 1954 SCR 53   : (AIR 1953 SC 333  ), extended the doctrine to a case of sale or a purchase of goods effected within the State by transfer of shipping documents while the goods were in the course of transit. The decision dealt with three types of purchases, viz., (i) purchases made in the local market; (ii) purchases made in the neighbouring districts of an adjacent State; and (iii) imports from Africa. The imports from Africa consisted of twogroup consisted of goods that were purchased when they were on the high seas and shipped from the African ports to Cochin or Quilon : we are not concerned with the other group. In the said case some commission agents at Bombay arranged for the purchase on behalf of the assessee, got delivery of the shipping documents at Bombay through a bank which advanced money against the shipping documents and collected the same from the assessees at destination. This Court, by a majority, held that, in respect of the purchases falling under the first group of imports, the commission, agents acted merely as agents of the respondents therein and that the said purchases occasioned the import and therefore came within the exemption. That was not a case where the goods were sold by an importer in India to a third party when the goods were on the high seas. It was a case where a party in Cochin purchased goods which were on the high seas through his agent at Bombay and the agent paid the price through a bank against the shipping documents. But the learned Judge, Patanjali Sastri, C. J., expressing the majority view, considered the scope of the exemption in all its aspects and summarized the conclusions thus at p. 69 (of SCR) : (at p. 338 of AIR)conclusions may be summed up as follows :(1) Sales by export and purchases by import fall within the exemption under article 286 (1) (b) . . . . . . (2) Purchases in the State by the exporter for the purpose of export as well as sales in the State by the importer after the goods have crossed the customs barrier are not within the exemption. (3) Sales in the State by the exporter or importer by transfer of shipping documents while the goods are beyond the customs barrier are within the exemption, assuming that the State power of taxation extends to suchJ., as he then was, in his dissenting judgment, agreed with Patanjali Sastri, C. J., on the third conclusion with which we are now concerned. The learned Judge put forward his view at p. 94 (of SCR) : (at p. 347 of AIR), thussales or purchases, by delivery of shipping documents while the goods are on the high seas on their import journey were and are well recognized species of transactions done every day on a large scale in big commercial towns like Bombay and Calcutta and are indeed the necessary and concomitant incidents of foreign trade. To hold that these sales or purchases do not take place "in the course of" import or export but are to be regarded as purely ordinary local or home transaction distinct from foreign trade, is to ignore the realities of the situation. Such a construction will permit the imposition of tax by a State over and above the customs duty or export duty levied by Parliament. Such double taxation on the same lot of goods will increase the price of the goods and in the case of export, may prevent the exporters from competing in the world market and, in the case of import, will put a greater burden on the consumers. This will eventually hamper and prejudicially affect our foreign trade and will bring about precisely that calamity which it is the intention and purpose of our Constitution to prevent.The legal positionle can be summarized thus : (1) The course of import of goods starts at a point when the goods cross the customs barrier of the foreign country and ends at a point in the importing country after the goods cross the customs barrier; (2) the sale which occasions the import is a sale in the course of import; (3) a purchase by an importer of goods when they are on the high seas by payment against shipping documents is also a purchase in the course of import and (4) a sale by an importer of goods after the property in the goods passed to him either after the receipt of the documents of title against payment or otherwise, to a third party by a similar process is also a sale in the course ofview of the foregoing discussion, it should be held that the sales fall under the fourth principle and therefore they were sales that took place in the course of import of the goods into India. A bill of lading is "a writing, signed on behalf of the owner of the ship in which goods are embarked, acknowledging the receipt of the goods, and undertaking to deliver them at the end of the voyage subject to such conditions as may be mentioned in the bill of lading". It isin commercial world that a bill of lading represents the goods and the transfer of it operates as a transfer of the goods.The legal effect of the transfer of a bill of lading has been enunciated by Bowen, L. J., in Sandershave quoted the passage in extenso as it clearly and fully states the law on the subject. It is not disputed that the law in India is also similar to that in England. The delivery of the bill of lading while the goods are afloat is equivalent to the delivery of the goods themselves.The first clause defines the term "sellers" to mean the party selling the sugar and the term "the Government" to mean the President of India. Clause 2 prescribes that suitable gunny bags approved by the Government should be used for importing sugar. Clause 3 provides for inspection of quality, weight and packing of sugar by the Government at the time of shipment. Clause 4 says that sugar shall be shipped to particular ports. Clause 5 compels the sellers to engage steamers on charter terms, empowers the Government to take delivery of the goods at the port of discharge from the ships rail and imposes the burden on the sellers to meet the expenses of stavedoring, lighterage where necessary, hiring of cranes, dock dues and pilotage. Clause 6 deals with the mode of payment for supplies made; under that clause the sellers are to submit a bill for full payment of cost and freight value to the Government in the Ministry of Food and Agriculture, New Delhi, duly supported by a complete set of clean on board bills of lading consisting of three negotiable and threecopies a certificate of origin of sugar a certificate of quality, weight and packing, a certificate from the shipowners that the freight has been paid in full and that theretain no lien whatsoever on the cargo on that account. Under clause 6 (c) letter of credit shall be opened by the sellers at their cost, and the Government of India agree to arrange for the foreign exchange as necessary to the extent of theof the quantity of sugar purchased on the production of an import licence which will be issued on application to the proper authority on their prescribed form. Clause 8 confers on the Government a right, in the event of the sellers failure to supply the sugar in accordance with the terms of the contract, to recover any sum as liquidated damages, and or by way of penalty upto a prescribed amount. Clause 9 authorizes the Government in the event of the sellers failing to observe or perform any provisions of the contract, to terminate the contract forthwith. Clause 11 under the heading "Force Majeure" confers on the Government, in case delivery in whole or in part is prevented or delayed directly or indirectly by any cause of Force Majeure, was strikes, rebellion, insurrection, political disturbances, civil commotion, fire or flood, on account of plague or other epidemics, the right to cancel the contract for the quantities so prevented or delayed. After the sellers entered into the contracts, they obtained the requisite licences from the Government, opened letters of credit, placed orders with foreign companies, engaged a steamer on charter terms, took delivery of the goods from the foreign firms and, when the goods were on the high seas delivered the documents of title to the Central Government against payment and the said Government, taking the licence from the sellers, cleared the goods at the Bombay harbour.14. Let us now scrutinize the terms of the contract to ascertain whether they disclose any intention of the parties that notwithstanding the delivery of the bill of lading against payment the property in the goods should not pass to the Government. The circumstances under which the contracts were entered into between the parties indicate that both the parties were interested to see that property in the goods passed in the ordinary way when the shipping documents were handed over to the Government against payment. The sellers had to meet their liability to the foreign companies with whom they opened letters of credit and the Government must have been anxious to get the title to the goods so that the sellers might not divert the goods towards their other commitments or to other buyers for more tempting prices. Under the contract every safeguard for securing the goods of agreed specifications was provided for in the earlier clauses and therefore there was no reason for postponing the passing of the property in the goods to the buyer till the goods were actually delivered in the port. The sellers on their side would have been anxious that the property should pass when the goods were on the high seas, for otherwise they would be compelled to pay sales tax. Nor are the clauses of the contracts relied upon by the respondents inconsistent with the property in the goods passing in accordance with the mercantile usage. The liability undertaken by the sellers to meet the expenses relating to stevedorage, lighterage where necessary, hiring of cranes, dock dues and pilotage, at the time of delivery of the goods on which reliance is placed to indicate a contrary intention, in our view, has nothing to do with the question raised, for that liability can rest with the sellers even after the property in the goods has passed to the buyers; nor clause 9 to 11 on which strong reliance is placed by the learned counsel are inconsistent with the property in the goods passing to the buyer; they could legitimately be made applicable to a point of time when the property in the goods has not passed to the buyer. If the sellers fail to observe the performance of any provisions of the contracts before the property in the goods passed to the buyer, under clause 9 of the contracts the buyer can cancel the contract. So too, under cl. 11, if any contemplated mishap takes place on the high seas by force majeure, the seller shall send a cablegram to that effect and the buyer is empowered to cancel the whole of the contract or a part of it. This also applies to a point of time before the property in the goods has passed to the buyer. If on the other hand, the seller delivers the shipping documents against payment and thereafter if he does not deliver the goods at the port, the buyer may have other remedies for the recovery of damages etc. But that right is not covered by either cl. (9) or cl. (11) of the contract.A scrutiny of all the terms of the contract does not indicate the intention that the property in the goods shall not pass to the buyer notwithstanding delivery of shipping documents against payment.15. Apart from the terms of the contract, reliance is also placed by the learned counsel for the respondents on the following circumstances :(i) the seller himself chartered the ship; and (ii) the licence issued by the Government was madeWe do not see how these two facts indicate the contrary intention.If the seller himself chartered a steamer, when the goods he purchased were loaded in the ship, the property in the goods passed to him and therefore he was in a position to sell the same to the Government. The fact that the licence washas no relation to the property in the goods passing to the Government. The licence issued by the Government is an exercise of the statutory power under the relevant Act. Whether the petitioner sold the goods to the Government or to a third party, he had to obtain a licence. Indeed in the present case, the licence was given to the seller with the express object of fulfilling the contracts with the Government and was issued several days after the contracts were executed, and indeed the Government took the licence from the seller and cleared the goods through their officer.16. For all the foregoing reasons we hold that the property in the goods passed to the Government of India when the shipping documents were delivered to them against payment. It follows that the sale of the goods by the petitioner to the Government of India took place when the goods were on the high seas.17. That being so, the sales in question must be held to have taken place in the course of the import into India and therefore they would be exempted from sales tax under Art. 286(1) (b) of the Constitution.18. In this view, no other question would arise for consideration.