Ray, C.J. - These two appeals by certificate and the writ petitions turn on the question whether the contract for sale of goods was an inter-State sale or an inter-State sale.
2. The appellant is a company having its registered officer at Calcutta. There are branches at Bombay, Delhi Madras and Lucknow. The main factory is at Madras.
3. In order to appreciate the real controversy it is necessary to refer to the facts of one of the Civil Appeals as a pattern of transaction.
4. In Civil Appeal 1838 of 1969 Asha Metal Works of Bombay referred to as the Bombay buyer wrote to the Bombay branch of the appellant asking for lowest quotation of certain goods. The Madras branch which has the principal factory there for manufacture of goods was written to by the Bombay branch. The Madras branch wrote to the Bombay branch quoting the prices for Madras. The Bombay branch then wrote to the Bombay buyer that the price was for Madras and delivery would be ex-works Madras. The Bombay buyer thereupon placed the order with the Bombay branch.
5. On these facts counsel for the appellant contended that the sale was at Bombay inasmuch as the Bombay buyer placed the firm order at Bombay, payment was to be made at Bombay, railway receipt was in the name of the Bombay branch and the goods were to be delivered at Bombay. It was emphasised that there was no contract or privity between the Madras branch and the Bombay buyer but the privity was only with the Bombay branch.
6. The only question is whether the sale was an inter-State sale or a sale at Bombay. If the movement of the goods from Madras to Bombay was an incident of or occasioned by the sale itself it would be taxable under section 3 (a) of the Central Sales Tax Act.
7. There was not and there could not be any contract of sale between the factory of the seller appellant at Madras branch and the Bombay branch of the appellant. It is obvious that the Bombay branch is the agent of the seller appellant. The appellant could not be the buyer as well as the seller.
8. The contention of the appellant is that the goods were sent by the factory at Madras branch to the Bombay branch and thereafter the goods were sold by the Bombay branch to the Bombay buyer.
2. The sale as well as the movement of the goods from Madras to Bhandup at Bombay was a part of the same transaction. The movement of the goods from Madras to Bhandup was integrated with the contract of sale for the following reasons. The Bombay branch received the Bombay buyers order and sent the same to the Madras branch factory. When the Bombay buyer asked for quotation of prices the Bombay branch wrote to the Madras branch and gave all the specifications and stated that the goods were for the Bombay buyer. The Madras branch in reply referred to the order of the Bombay buyer and gave particulars mentioning that the price was for Madras. The Bombay branch thereafter wrote to the Bombay buyer reproducing all the particulars, conditions of sale and mode of despatch as stated by the Madras branch and further stated that the goods would be manufactured at the Madras branch factory.
10. It is important to note that all prices were shown for Madras and it was further stated that all goods would be despatched at the risk of the Bombay buyer. It is in this context that the Bombay buyer on 27, May 1964 placed an order with the Bombay branch accepting all the terms and conditions. The Bombay branch placed an indent order addressed to the Madras branch giving all the particulars and stated the buyers name as Asha Metal Works, Bombay and gave the customers order number and the date viz., 27 May, 1964. The goods were to be despatched for Madras.
11. The Bombay branch wrote to the Bombay buyer on August 28, 1964 that they had received an invoice from the factory at the Madras branch that some of the goods against the order of the Bombay buyer were ready for despatch. The Bombay branch asked the Bombay buyer to give the details of despatch and insurance instructions per return of post. The Bombay branch thereafter wrote to the Madras branch factory stating 'Please despatch the equipment covered by our above indent by goods train to Bhandup Railway Station freight to pay. The Railway Receipt and other document to be sent to us for disposal'. The Madras branch factory despatched the goods from Madras to Bombay by goods train and gave intimation to the Bombay branch. The goods were delivered to the Bombay buyer at Bhandup through clearing agents.
12. The goods were despatched from Madras at the risk of the buyer to Bombay. The goods were insured and insurance charges were collected from the buyer at Bombay. The freight charged from Madras to Bombay was borne by the buyer. The movement of the goods from Madras was an incident of the contract of sale.
13. Counsel for the appellant contended that there was no privity between the Madras branch and the Bombay buyer but that the privity was only between the Madras branch and the Bombay branch. It was also said that the Bombay branch was an independent and separate entity and the direct contract was between the Bombay branch and the Bombay buyer and the Madras factory were not parties to the contract.
14. The appellant has branches at different places. The appellant company is one entity and it carries on business at different branches. Branches have no independent and separate entity. Branches are different agencies. The contract of sale is between the appellant company and the Bombay buyer,
15. The appellant in the present case sent the goods direct from the Madras branch factory to the Bombay buyer at Bhandup, Bombay. The railway receipt was in the name of the Bombay branch to secure payment against delivery. There was no question of diverting the goods which were sent to the Bombay buyer. When the movement of goods from one State to another is an incident of the contract it is a sale in the course of inter-State sale. It does not matter in which State the property in the goods passes. What is decisive is whether the sale is one which occasions the movement of goods from one State to another. The inter-State movement must be the result of a covenant, express or implied, in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the inter-State movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course of inter-State trade or commerce, that the covenant regarding inter-State movement must be specified in the contract itself. It will be enough if the movement is in pursuance of and incidental to the contract of sale.
16. When a branch of a company forwards a buyers order to the principal factory of the company and instructs them to despatch the goods direct to the buyer and the goods are sent to the buyer under those instructions it would not be sale between the factory and its branch. If there is a conceivable link between the movement of the goods and the buyers contract, and if in the course of inter-State movement the goods move only to reach the buyer in satisfaction of his contract of purchase and such a nexus is otherwise inexplicable, then the sale or purchase of the specific or ascertained goods ought to be deemed to have been taken place in the course of inter-State trade or commerce as such a sale or purchased occasioned the movement of the goods from one State to another. The presence of an intermediary such as the sellers own representatives or branch office, who initiated the contract may not make the matter different. Such an interception by a known person on behalf of the seller in the delivery State and such persons activities prior to or after the implementation of the contract may not alter the position.
17. The steps taken from the beginning to the end by the Bombay branch in co-ordination with the Madras factory show that the Bombay branch was merely acting as the intermediary between the Madras factory and the buyer and that is was the Madras factory which pursuant to the covenant in the contract of sale caused the movement of the goods from Madras to Bombay. The inter-State movement of the goods was a result of the contract of sale and the fact that the contract emanated from correspondence which passed between the Bombay branch and the company could not make any difference.
18. For the foregoing reasons the appeals are dismissed. The writ petitions are also dismissed. There will be no order as to the costs. It will be open to the appellant to apply for refund, if any, if permissible at law.