V. Bhargava, J.
1. The following three questions have been referred for our opinion by the Judge (Revisions) Sales Tax, U.P.
(1) Whether an order passed under Section 5 is an assessment appealable under Section 9 of the U.P. Sales Tax Act ?
(2) Whether it is sufficient for a claim under Section 5 that goods are delivered outside the State of Uttar Pradesh irrespective of the questions whether the sale was subject to the condition that title would not pass to the buyer until delivery was effected outside the State of Uttar Pradesh and whether the party taking delivery of the goods from the mills was not the party buying the goods from the mills; and,
(3) Whether on the facts and circumstances of the case the assessee was entitled to a rebate of the tax on the sales of sugar which was despatched to Gaya outside the State of Uttar Pradesh.
2. The statement of the case submitted by the Judge (Revisions) Sales Tax gives the facts which according to him are relevant for answering these questions of law. The assessee claimed a rebate under Section 5 on sales of sugar delivery of which, according to the assessee, was made outside the State of Uttar Pradesh. A part of the claim was disallowed by the Assessing Authority, who held that in those cases rebate could not be allowed as the bill had been drawn in the account of a party residing within Uttar Pradesh. The assessee went up in appeal before the Judge (Appeals) Sales Tax, but the appeal was dismissed on the ground that no appeal under Section 9 of the U.P. Sales Tax Act lay against the order. Thereafter the assessee went up in revision. The learned Judge (Revisions) agreed with the view of the Judge (Appeals) that no appeal lay and consequently upheld the order of the Judge (Appeals) dismissing the appeal. At the same time the learned Judge went into the merits to find out whether the order of the Assessing Authority was correct and after recording his findings upheld the order of the Assessing Authority. Thereupon, the assessee moved the Judge (Revisions) to make a reference to this Court which was refused. The assessee finally moved this Court which directed the Judge (Revisions) to submit a. statement of the case after framing proper questions of law and the Judge (Revisions) has framed the three questions mentioned above.
3. Having heard learned counsel for the parties, we consider that the first and the third questions have been properly and correctly framed and should be answered by us, but the second question does not arise in the present case as the facts which are assumed in that question have not been found at any stage by the Judge (Revisions) nor are such necessary facts given in the statement of the case. We, therefore, consider that the second question should not be answered by us at all and we therefore refuse to answer it.
4. So far as the first question is concerned, we have no difficulty in holding that the decision of the Judge (Revisions) on it is perfectly correct. Under Section 9 of the U.P. Sales Tax Act, an appeal can be filed only against an order of assessment of sales tax. This particular order against which the appeal was sought to be filed before the Judge (Appeals) Sales Tax was an order refusing to grant a rebate under Section 5 of the Sales Tax Act and such an order cannot possibly be held to be an assessment order against which an appeal could be entertained by the Judge (Appeals). Such an order of the assessing authority could have been challenged at a later stage when the final assessment was actually made and an appeal against that order of assessment was presented, because at that stage the assessee could have put forward the claim before the Judge (Appeals) that in the assessment itself this rebate should have been allowed and the demand for tax reduced to that extent. The order merely refusing to grant the rebate by itself could not be challenged by filing an appeal before the Judge (Appeals) Sales Tax and, consequently, our answer to the first question is in the negative.
5. A question arose whether in view of our opinion expressed on the first question, the third question should be answered at all. As we have indicated above, no appeal against the order refusing rebate under Section 5 of the Sales Tax Act passed by the Assessing Authority could be filed, nor could there be a competent revision before the Judge (Revisions) against the appellate order of Judge (Appeals) refusing to entertain the appeal. Under Section 10 of the U.P. Sales Tax Act, however, a revision could be entertained by the Judge (Revisions) even against the original order under Section 5 of the Sales Tax Act passed by the Assessing Authority on the ground that no appeal lay from that order and we find from the revisional order passed by the Judge (Revisions) taken together with the order passed by him on the application under Section 11 requiring him to make a reference to this Court that the Judge (Revisions) did entertain a revision against the order of the Assessing Authority passed under Section 5 of the Sales Tax Act and actually upheld that order. The revision to this extent before the Judge (Revisions) was a competent revision and any question of law arising out of the decision contained in that revisional order can be competently referred to us and our opinion on it can be sought. In the circumstances, the third question which does arise out of the decision on merits contained in the revisional order of the Judge (Revisions) is being answered by us.
6. On the merits of the third question, it appears that the approach of the learned Judge (Revisions) has been entirely incorrect. The learned Judge, it appears from his revisional order, held that no rebate should be allowed in respect of sales of goods manufactured in Uttar Pradesh if the sale of those goods was made to a buyer residing in or carrying on business in Uttar Pradesh. The question of the residence or place of business of the buyer in a sale transaction is entirely irrelevant when the applicability of the provisions of Section 5 of the U.P. Sales Tax Act has to be considered. Under that provision of law, a dealer is entitled to rebate in all cases where the sale is for delivery outside Uttar Pradesh and the goods are actually delivered outside Uttar Pradesh irrespective of the question whether the buyer resides in or carries on business in Uttar Pradesh or outside Uttar Predesh. The criterion for the applicability of Section 5 of the U.P. Sales Tax Act is whether, in a particular sale, the goods are actually delivered outside Uttar Pradesh and whether the sale was for delivery outside Uttar Pradesh. We have carefully gone through the revisional order of the learned Judge as well as the statement of the case and we have failed to find anywhere any finding recorded by him that these particular transactions, which were in question and in respect of which rebate was disallowed, were such that in respect of them the sale was for delivery in Uttar Pradesh or the goods were actually delivered in Uttar Pradesh. On the other hand, the facts contained in the revisional order as well as the statement of the case show that the learned Judge accepted the fact that the goods were actually delivered not in Uttar Pradesh but at Gaya in the State of Bihar. The circumstances under which the goods were delivered at Gaya have also been indicated. The buyers no doubt were Messrs Jayanti Lal Magan Lal of Kanpur and it is correct, as held by the learned Judge (Revisions), that the mere fact that they directed delivery of the goods to be made to Messrs Ram Lal Jugal Kishore of Gaya did not make Messrs Ram Lal Jugal Kishore the buyers. The buyers from the mill continued to be Jayanti Lal Magan Lal of Kanpur. But as we have said earlier, it is quite immaterial whether the buyers were Messrs Jayanti Lal Magan Lal of Kanpur or Messrs Ram Lal Jugal Kishore of Gaya. Whoever may have been the buyer, all that needed to be found out was whether the sales were for delivery at Gaya and whether the goods were actually delivered at Gaya. It appears that Messrs Jayanti Lal Magan Lal of Kanpur, who were the real buyers sent despatch instructions to the assessee who despatched the goods according to the instructions to Gaya. It does not appear that, apart from these instructions under which the goods were despatched, there was any other contract of sale under which sale might have been made by the assessee to Messrs Jayanti Lal Magan Lal of Kanpur. In fact the circumstances found by the learned Judge (Revisions) would indicate that the sale of the goods by the assessee to Messrs Jayanti Lal Magan Lal of Kanpur was also evidenced only by these despatch instructions. The despatch instructions were clear that the goods were to be sent to Gaya, which means that Messrs Jayanti Lal Magan Lal of Kanpur wanted goods to be delivered at Gaya. The assessee in compliance with these instructions actually despatched the goods to Gaya. In doing so, the assessee must be deemed to have agreed to the arrangement that delivery of the goods would be given at Gaya and it was in pursuance of this agreement that the goods were actually delivered there. In these circumstances, it is also clear that the sales themselves were for delivery at Gaya. Since the sales were for delivery at Gaya outside Uttar Pradesh and the goods were actually delivered at Gaya, the assessee was entitled to rebate admissible under Section 5 of the U.P. Sales Tax Act. Consequently, we answer the third question in the affirmative.
7. In view of the circumstance that, as a result of our opinion on the question that we are answering, the assessee is getting the relief for which he came up to this Court, we direct that the assessee shall be entitled to costs of this reference which we fix at Rs. 200.