1. The turnover, the liability of which to sales -tax is in dispute, consists of two items: (1) Rs. 3,19,503 and (2) Rs. 28,749-12-0. The Tribunal agreed with the Department in holding that these two items were also liable to sales tax. It was the correctness of those findings that the assessee challenged by this petition under Section 12-D of the Sales-tax Act.
2. It should be easier to dispose of the second item first. That represented the turnover of sales effected out of the stock held by the assessee at Madras, no doubt, on instructions from the Calcutta firm. On the facts, the Tribunal was right in holding that the sale took place only at Madras, and that the assessee was the dealer in relation to those sales. The claim of the assessee that this item of Rs. 28,749-12-0 is not liable to sales tax was rightly rejected.
3. The first item, Rs. 3,19,503, represented a turnover of sales of imported milk powder. The Tribunal set out the course of dealings. Messrs. Arun and Co., the principal firm at Calcutta, instructed the appellant 'to take delivery of the documents of title on payment of the value to the Bank and hand them over to the clearing agent, one S. G. Chetty.' It should be obvious that the clearing agent was the agent of the assessee, Messrs. Arun and Co. The Tribunal proceeded :
'This clearing agent collected the value from the buyers and on receipt of the full value delivered the Roods to the buyers when they presented the delivery orders issued to them by the appellant.'
The Tribunal also found that these delivery orders were issued to the buyers by the assessee only after the steamer conveying the goods had arrived in the Madras Harbour. But that by itself may not be material in deciding when the sale was effected. The Tribunal also pointed out:
'The appellant delivered the bill of lading to the clearing agent who cleared the goods or behalf of the appellant. On authorisation in the shape pf delivery orders issued to the buyers, the clearing agent delivered the goods to the buyers.'
The delivery orders themselves were issued by the assessee subsequent to the contract of sale. Whether the contract of sale was entered into, while the goods were still on the high seas, may not be material, because this was not a case of transfer of title to the goods by transfer of shipping documents from the assessee to the buyers. Out of a fairly large mass of milk powder, a portion was sold to a given buyer, and that portion had to be appropriated before the sale could be effected in favour of the given buyer.
The issue of delivery order subsequent to or even simultaneously with the contract of sale could not suffice to transfer title to the goods sold, because what was sold was an unascertained and unappropriated portion of a mass of goods yet to arrive in this country. The appropriation was only at the point of delivery, and that delivery was effected only after the goods had been cleared by the assessee's clearing agent, that is, after the goods had crossed the customs frontier.
4. Learned counsel for the assessee urged that it would be a case of sale of specific goods coming within the scope of Section 20 of the Sale of Goods Act. On the facts of this case, we are un-able to see any real basis for that contention. Therefore, it is not necessary for us to consider whether Section 21 or Section 22 would apply, because unless the goods sold are specific goods, as defined by Section 2(14) of the Sale of Goods Act, the further question whether the transaction falls within the scope of Section 20 or 21 or 22 may not arise.
The transaction, in our opinion, really falls within the scope of Section 23(1), which provides for a transfer of title to the goods sold when the contract of sale is entered into. When the goods to be sold were unascertained, as we have pointed out earlier in this case, the buyers from the assesses obtained title to the goods only at the point of delivery, because only at the point of delivery to the given buyer there was ascertainment of the goods sold to him. That was a sale after the import had been completed, and a sale which was within the State. Therefore, those sales were rightly held taxable by the Tribunal.
5. The petition fails and is dismissed withcosts. Counsel's fee Rs. 100/-.