V. Bhargava, A.C.J.
1. The Judge (Revisions) has, under Section 11 of the U.P. Sales Tax Act, referred the following three questions for our opinion :-
Question 1.-Whether it is sufficient for a claim under Section 5 that goods were actually delivered outside the State of Uttar Pradesh irrespective of the facts whether the property in the goods passed and the party taking delivery of the goods is not the party which had entered into a contract with the mills despatching the goods ?
Question 2.-Whether the words 'sale for delivery outside Uttar Pradesh' mean that title would not pass until delivery is taken outside the State of Uttar Pradesh ?
Question 3.-Whether rebate would be admissible when there are two contracts in respect of the same goods, one between the mills and the party residing in the State of Uttar Pradesh and the other between that party and a party residing outside the State of Uttar Pradesh, and goods are despatched outside the State on some instructions from the parties which had not entered into a contract with the mills despatching the goods ?
2. The statement of the case and the order passed by the Judge (Revisions) on the revision application show that the assessee, Messrs Modi Food Products Co., Ltd., Modinagar, was carrying on the business of manufacturing mustard oil at Modinagar. When being assessed to sales tax for the assessment year 1949-50 on the basis of the sales of mustard oil during the previous year ending 31st May, 1948, the assessee claimed rebate to the extent of half the tax on sales of the value of Rs. 39,47,921-8-0 under Section 5 of the U.P. Sales Tax Act. The claim was based on the assertion that this turnover of the assessee represented proceeds of sales of mustard oil for delivery outside Uttar Pradesh which mustard oil was also, in fact, actually delivered outside Uttar Pradesh. The Judge (Revisions) did not accept this contention of the assessee and did not allow the rebate claimed. Consequently, at the request of the assessee, the three questions mentioned above have been referred for opinion of this Court. It appears to us that the questions, as framed by the Judge (Revisions), are not in appropriate language and, in order to bring out the points arising correctly, they have to be re-framed. Under Section 5 of the U.P. Sales Tax Act, an assessee claiming rebate has to show that the rebate is being claimed on proceeds of sales which were for delivery outside Uttar Pradesh and in respect of which the delivery did actually take place outside Uttar Pradesh. In this case also, therefore, both these ingredients had to be established by the assessee and the questions that the Judge (Revisions) actually had to decide were whether these requirements were or were not satisfied in view of the material placed before the Judge (Revisions). We, consequently, consider that the following two questions appropriately bring out the questions of law which arise out of the revisional order of the Judge (Revisions).
Question 1.-Whether the sales, on the proceeds of which rebate is claimed by the assessee under Section 5 of the U.P. Sales Tax Act, were for delivery outside Uttar Pradesh ; and
Question 2.-Whether the goods in respect of the sales mentioned in question 1 were actually delivered outside Uttar Pradesh ?
3. In order to answer these two questions, we have to take into account all the findings of fact which were recorded by the Judge (Revisions) in his revisional order and which have been included in the statement of the case. On that material it has been urged by learned counsel that we should in answering these two questions, follow the view which was expressed by this Court earlier in the case of Shri Ganesh Sugar Mills Ltd. v. Commissioner of Sales Tax, Uttar Pradesh, Lucknow, and Anr.  11 S.T.C. 426. It, however, appears to us that the decision of this Court in that case cannot be applied to the present case because such questions have to be answered on the facts and circumstances which may have been found by the Judge (Revisions) in each particular case. In the case of Shri Ganesh Sugar Mills Ltd., which came up before this Court earlier, the judgment given by this Court would show that the Judge (Revisions) had failed to record any finding at all on the two questions, whether the sales were for delivery outside Uttar Pradesh and whether the goods in respect of those sales were actually delivered outside Uttar Pradesh. The reference in that case was answered in favour of the assessee by setting aside the decision recorded by the Judge (Revisions) on the ground that the Judge (Revisions) had never recorded any finding that the goods were actually delivered inside Uttar Pradesh and yet that was the basis of the consequential order passed by the Judge (Revisions) refusing relief of rebate under Section 5 of the U.P. Sales Tax Act. The position in the case now before us is different. Here the Judge (Revisions) has recorded the finding that the delivery was actually effected within Uttar Pradesh when the railway receipts were handed over to the purchaser of the oil, Messrs Krishna Kumar Om Prakash. Further, the correspondence between the parties has been taken into account, disclosing the various circumstances from which an inference has to be drawn whether the sales were for delivery within or outside Uttar Pradesh. In these circumstances, the view expressed by us in that earlier case cannot automatically govern this case.
4. In this case, so far as the second question is concerned, learned counsel for the assessee has drawn our attention to the view expressed by Venkatarama Ayyar, J., in his minority judgment in the case of the Bengal Immunity Company Limited v. The State of Bihar and Ors.  6 S.T.C. 446 which came before the Supreme Court. The view, which was expressed by his Lordship in that decision as a Judge of the Supreme Court, has been followed by the Mysore High Court in in re Deputy Commissioner of Sales Tax, Bangalore,  8 S.T.C. 248 and by the Madras High Court in the case of India Coffee and Tea Distributing Co., Ltd., Madras v. State of Madras  9 S.T.C. 769. A question arose whether the view expressed by one single Judge of the Supreme Court on a question of law when his was the minority judgment and when the majority of the Judges of the Supreme Court, whose view finally determined the result of the case before the Supreme Court, expressed no opinion on that point at all would be binding on the High Court. It seems to us that, in this particular case, we need not go into this aspect as it would not be necessary for us to answer the second question in view of the opinion at which we have arrived on the first question and, consequently, we proceed to give our answer to the first question.
5. The facts given in the statement of the case and the revisional order of the Judge (Revisions) show that there was exchange of certain letters and telegrams between the assessee and Messrs Krishna Kumar Om Prakash. The contents of one of the letters, viz., the letter dated 2nd May, 1947, addressed to Messrs Krishna Kumar Om Prakash by the Secretary of the assessee has been quoted in the revisional order. The quotation from that letter shows that Messrs Krishna Kumar Om Prakash acknowledged the receipt of two earlier letters sent by the assessee company wherein the assessee company had agreed to pay one per cent, commission to them. Messrs Krishna Kumar Om Prakash then proceeded to confirm their telephonic conversation which had taken place a day earlier wherein the assessee had offered to sell the standard mustard oil at the rate of Rs. 55 per maund in tank wagons F.O.R. Modinagar. The revisional order further quotes the three subsequent telegrams, two of them dated 12th May, 1947, and the third dated 26th May, 1947, in which there was mention of sale of certain wagons of oil. The Judge (Revisions), after quoting from these documents, proceeded to find that Messrs Krishna Kumar Om Prakash instructed the applicants to despatch wagons of mUstard oil to certain parties and the goods were sent in accordance with those despatch instructions. Admittedly, the .transactions, in respect of which rebate was claimed, were such that the goods were actually despatched by rail to places outside Uttar Pradesh. Those despatch instructions and the facts showing the places to which the goods were despatched in compliance with them were, no doubt, relevant for determining the question as to where the goods so despatched were actually delivered. The question, which we are at present concerned with is, however, different and that question is as to whether the sales in respect of those goods so despatched were also for delivery outside Uttar Pradesh. The despatch instructions would not determine the terms of the sale itself. The terms of the sale, it appears to us, have to be gathered from the correspondence available showing what was agreed upon between the two parties in respect of those sales. The general agreement for the sales is clearly contained in the letter dated 2nd May, 1947, the contents of which have already been reproduced above. They show that the sales were subject to the condition that Messrs Krishna Kumar Om Prakash were to be entitled to one per cent, commission and the oil was to be sold at the rate of Rs. 55 per maund in tank wagons F.O.R. Modinagar. This would mean that the sale was of oil in tank wagons free on rail at Modinagar. The Judge (Revisions), after examining further evidence, has also proceeded to find that, according to the terms of agreement about these sales, after the goods were loaded in wagons and railway receipts were prepared, they were despatched to Messrs Krishna Kumar Om Prakash at Kanpur after being endorsed in their favour, though the goods were originally booked to 'self' by the assessee. The payment of the price of the goods also took place at Kanpur. All these terms of the contract indicate that, according to the agreement of sale, the, property in the goods was to pass to Messrs Krishna Kumar Om Prakash at Modinagar after the goods had been loaded in wagons. Thereafter, of course, the goods could be despatched to any destination indicated by them in the despatch order. It is true that in carrying out the transactions, on the proceeds of sale of which rebate is claimed, the goods were despatched to destinations outside Uttar Pradesh, but the nature of the contract of sale and the manner in which that contract was to be performed show that, if Messrs Krishna Kumar Om Prakash had sent any despatch instructions directing the assessee to despatch those wagons to some station within Uttar Pradesh, they would have been despatched to that place. In fact the terms of the contract between the assessee and Messrs Krishna Kumar Om Prakash appear to be that, on the goods being loaded in wagons at Modinagar, property in those goods was to vest in Messrs Krishna Kumar Om Prakash and thereafter they were to be sent to whatever place Messrs Krishna Kumar Om Prakash desired their despatch. If they desired their despatch to a particular place within Uttar Pradesh, they would have to be despatched to that place. The sale of the goods, therefore, between the assessee and Messrs Krishna Kumar Om Prakash was for delivery at Modinagar and the subsequent despatch was not a part of the transaction of sale of those goods at all. The despatch could be regulated by Messrs Krishna Kumar Om Prakash after the property in the goods had vested in them at their own convenience and the despatch could be either to the places in Uttar Pradesh or outside Uttar Pradesh. The fact that this option continued to vest in them and that property in the goods passed to them while the goods were at Modinagar clearly means that the sale as such was only for delivery at Modinagar while the subsequent despatch instructions constituted separate arrangement to suit the convenience of Messrs Krishna Kumar Om Prakash and were not part of the sale contract itself. It would thus appear that, on the material which was available before the Judge (Revisions), the correct finding should have been that the assessee had failed to show, that the sales of those goods, in respect of which rebate was being claimed under Section 5 of the U.P. Sales Tax Act, were for delivery outside Uttar Pradesh, so that the first question has to be answered against the assessee. We answer it accordingly. In view of this answer to the first question, the second question becomes unnecessary as the assessee would get no relief even if the second question is answered in favour of the assessee. The assessee will pay the costs to the department which we fix at Rs. 200.