1. The facts in this case are briefly as follows:--The petitioner is a well-known company dealing with the manufacture and supply of aluminium utensils and has its registered office in Calcutta. The petitioner submitted tenders for the supply of aluminium utensils required for military purposes by the Government of India in its Directorate of Supplies and Disposals. The tenders were made to the Director of Supplies and Disposals, Ministry of Works, Housing and Supply at 6, Esplanade East, Calcutta. The tenders having been accepted, a contract came into existence. The following particulars in the schedule to the acceptance of the tender are important and are set out below:--
I. Name and address of ... M/s. Jeewanlal (1929) Limited,
contractor 31, Netaji Subhas Road,
3. Name of Indentor ... C. O. D., Kanpur.
7. Conditions of contract as
contained in Form No. ... W.S.B. 133 as amended to date.
8. The Indenting Deptt. is ... Govt./Central/Military/Commer-
10. Place of delivery ... Free delivery at A.I., I.G.S.,
Hastings, Calcutta (Loose) for
(a) Terms of delivery onward despatch to consignee.
11. Consignee To Commandant, C.O.D., Kanpur
(a) Inspection Authority ... A.I., I.G.S., Hastings, Calcutta.
(a) By the ... P. & A.O., W.H. & S., Calcutta.
(b) During the year ... 1956-57.
2. The general conditions contained in W.S.B. 133 contain inter alia the following conditions:--
(v) (a) Place of delivery.--The contractor shall as may be required by the Secretary, Department of Supply, deliver the stores either free at, or F.O.R. the place or places detailed in the schedule hereto and not later than on the dates specified in the Acceptance of Tender.
15. System of payment.
(i) Unless otherwise agreed between the parties payment for the delivery of the stores will be made on submission of bills in the prescribed form.
(ii) Payment for the stores or for each delivery will be made to the contractor on submission of bills in accordance with the procedure laid down by the Secretary, Department of Supply (now Ministry of Works, Housing and Supply) as detailed below:--
(a) 90 per cent. of the price of each consignment will be paid on proof of despatch of stores to the consignee and on production of an inspection note issued by the Inspector.
The balance of 10 per cent. will be paid on receipt of consignment in good condition by the consignee, with his certificate to that effect endorsed on the copy of the inspection note which shall accompany the bill submitted by the contractor.
(d) Where the Inspector also acts as the consignee or where inspection is carried out by the consignee himself at destination and in all cases of local delivery full payment shall be made on submission of 'final 100 per cent. bill' supported by the Inspection Certificate and Consignee's Receipt to the Accounts Officer concerned.
3. The goods were delivered to the A.I.I.G.S., Hastings on the 13th September, 1955, 21st September, 1955, and 8th October, 1955. On the very same date, the petitioner submitted his bills to the Deputy Accountant-General, Industries and Supplies at P-2, Mission Row Extension, Calcutta, for the whole of the value of the goods supplied. The petitioner is a dealer under the West Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the 'said Act'). In its return submitted before the Commercial Tax Officer, Lyon's Range Charge, for the assessment year ending 31st December, 1955, the petitioner claimed deduction of a total sum of Rs. 21,550 being the amount of the three bills above-mentioned, under Section 5(2)(a)(v) of the said Act. The Commercial Tax Officer by his order dated 27th June, 1956, disallowed the whole sum, treating the amount as subject to the payment of sales tax. Against the said order, the petitioner preferred an appeal before the Assistant Commissioner of Commercial Taxes, Calcutta (South) Circle. By order dated 23rd March, 1957, the appeal was rejected. Against the said order of rejection the petitioner preferred a revision petition before the Additional Commissioner of Commercial Taxes, West Bengal. The order of the Assistant Commissioner was confirmed and the revision petition was rejected. Against the decision of the Additional Commissioner of Commercial Taxes, the petitioner filed a revision application before the Additional Member, Board of Revenue, Government of West Bengal. By his order dated 1st August, 1960, the revision application was rejected. In all these orders, it was held that the sale was completed within the State of West Bengal and was liable to payment of sales tax. The petitioner thereupon filed a reference before the Additional Member, Board of Revenue, West Bengal, under Sub-section (1) of Section 21 of the said Act for referring certain questions of law to the High Court. The said application was rejected as being out of time. The petitioner then filed a reference application in this High Court under Sub-section (2) of Section 21 of the said Act. The application was not entertained on the ground that it was out of time. Thereupon, the petitioner made this application and a rule was issued on the 17th May, 1961, calling upon the respondents to show cause why a writ in the nature of mandamus should not be issued directing the respondents to forbear from giving effect to the illegal order of assessment dated 27th June, 1956, and why a writ in the nature of certiorari should not be issued setting aside the several orders mentioned hereinbefore, and for other reliefs. I have mentioned above that the petitioner seeks to bring its case under the provisions of Section 5(2)(a)(v) of the said Act. That provision states that in the turnover during the relevant period for the purpose of calculation of the sales tax payable under the said Act, sales of goods which are shown to the satisfaction of the Commissioner to have been despatched by, or on behalf of dealer to an address outside West Bengal are to be exempted. Section 27 of the said Act runs as follows:--
27. (1) Notwithstanding anything contained in this Act--
(a) a tax on the sale or purchase of goods shall not be imposed under this Act,
(i) where such sale or purchase takes place outside the State of West Bengal,
(ii) where such sale or purchase takes place in the course of import of the goods into or export of the goods out of, the territory of India.
(b) a tax on the sale or purchase of any goods shall not, after the 31st day of March, 1951, be imposed where such sale or purchase takes place in the course of inter-State trade or commerce.
4. Mr. Banerjee on behalf of the petitioner has argued that the sale of goods mentioned above are not subject to the payment of sales tax for the following reasons:
1. Because the contracts which are the subject-matter of this application themselves require transportation of the goods from the State of West Bengal to the State of Uttar Pradesh.
2. That the goods were appropriated to the contract at Kanpur.
3. If the goods are held to have been delivered in the State of West Bengal, they were not delivered for consumption in that State and hence Article 286 of the Constitution applies and the sales are inter-State sales and exempt from the imposition of sales tax.
5. Although Mr. Banerjee formulated these points, it must be pointed out that in the return, a copy of which is at page 19 of the annexure to the petition, deduction is claimed under Section 5(2)(b) of the Bengal Finance (Sales Tax) Act, on the sole ground that the goods were sold by or on behalf of the dealer to an address outside West Bengal. Actually, this is the main contention put forward in this case. Mr. Banerjee has argued that although the goods were delivered to an address in Calcutta, the contract contemplated that they would be forwarded to Kanpur which is outside this State. He says that unless the 'consignee' at Kanpur gave a certificate, the petitioner was not entitled to realise the full amount of his bill. On the other hand, the learned Standing Counsel appearing on behalf of the respondents has argued that the contract contemplated local delivery to the party entitled to inspect. The goods were actually delivered in Calcutta and the condition in the contract which mentioned, 'for onward despatch to consignee', had nothing to do with the petitioner, nor is there any evidence to show that the goods were in fact despatched to Kanpur. He pointed out that one must take into account the manner in which these contracts are entered into by the Central Government for military purposes. Requisitions would be made from all over India, and the Central Government would enter into a contract with various dealers for the supply of the materials indented for. If the dealer was required by the contract to deliver the goods outside the State for consumption therein, it may amount to an inter-State sale and come within the scope of Article 286(2) of the Constitution. The conditions, however, also contemplated local delivery to the inspecting authority. In the case of delivery to the consignee outside the State, the bill would be made for go per cent. on delivery and 10 per cent. after the certificate had been obtained. In this case, however, the goods were delivered in Calcutta and on the same date the dealer billed Government for the whole amount. Therefore, the petitioner had nothing to do with the contemplated despatch to Kanpur. In other words, if the Government authorities changed their minds and did not forward the goods to Kanpur, that would not be a breach of contract. If the goods were delivered in Calcutta and were found to be in terms of the contract, the petitioner's duty ended and it was entitled to bill Government for the entire value of the goods supplied and this is actually what it did. Therefore, the sale was completed and the dealer was liable to pay tax thereon. A number of cases have been cited before me. I will only deal with those which I consider relevant.
6. The first case to be considered is a Bench decision of this Court, Indian Standard Wagon Co. Ltd. v. Commercial Tax Officer and Ors.  11 S.T.C. 47: In that case, the Railway Board placed an order with M/s. Martin Burn Ltd., Calcutta, for several wagons against the Railway Board's programme for 1952-53. The wagons were meant for the Western Railway. They were to be delivered F.O.R. seller's works siding which is within the State of West Bengal. The wagons were manufactured at Burnpur and delivered F.O.R. work siding at Burnpur. The matter had in the first instance been decided by me in the Indian Standard Wagon v. Commercial Tax Officer  9 S.T.C. 553. I held that, regard being had to the peculiar facts of the case the sale was an inter-State sale. This was challenged in appeal but Bachawat, J., did not find it necessary to deal with that particular question. Assuming that it was an inter-State sale, he held that a sale where the goods were delivered inside the State for the purpose of consumption in several places outside the State, does not fall within the Explanation to Article 286(1) of the Constitution prior to the Constitution (Sixth Amendment) Act, 1956, but it might be a sale inside the State. The Explanation does not say that a sale which is not an Explanation sale must necessarily be a sale outside the State. The fact that a buyer intends to consume the goods in some outside place does not convert a domestic sale into a sale of an inter-State character or make it a sale outside the State. The place where the goods are consumed does not necessarily localise the sale or fix its venue or situs. If the sale was an inter-State sale, then it might have been covered by Article 286(2). I held that the sale was an inter-State sale on the peculiar facts of the case. The sale was in respect of railway wagons which were admittedly required for purposes elsewhere. The facts in that case are distinguishable from the facts of the present case. Upon an interpretation of the contract itself, taken with the conduct of the parties in implementing it, I have no doubt that the words 'for onward despatch to consignee' had nothing to do with the petitioner. In my opinion, contracts covered by W.S.B. 133 can be of various kinds. In one case, the goods may be inspected and together with the certificate of inspection the dealer may be called upon to despatch the same by rail to the consignee. In such a case, the duty of despatching falls on the dealer and other considerations may arise. In other cases, the delivery may be made, locally for example, to the inspecting authority. In such a case, the dealer had no duty to despatch the goods outside the State to the consignee. The delivery was complete when the goods were delivered to the inspecting authority. In such a case, they could at once bill the Government provided, however, that the goods were found to be in conformity with the contract. This in fact is, what happened in this case. For military needs, goods are indented from all over India. The words 'for onward despatch to the consignee' throw no burden on the dealer, and in fact, it has nothing to do with the same. It is the concern of the Central Government to deal with the goods after the same have been delivered. One of the tests would be as to whether the Central Government could divert the goods elsewhere, and if they did so would it amount to a breach of the contract? Clearly, the goods could be so diverted, and such action would not amount to a breach of contract. This principle is illustrated by a Supreme Court decision, Endupuri Narasimham v. State of Orissa and Ors.  12 S.T.C. 232. In that case, the petitioner carried on business at Berhampur in the State of Orissa. Its business consisted of the purchase of certain commodities in Orissa, and selling them to dealers outside the State. The Sales Tax Officer, Berhampur, included in the taxable turnover of the petitioner the purchase of goods made by it inside the State but sold, as aforesaid, to dealers outside the State. The dealer challenged this and made an application to the Supreme Court under Article 32 of the Constitution. Aiyar, J., said as follows:--
In the present case, the purchases which are sought to be assessed involved no movement of the goods outside the State of Orissa. In order that a sale or purchase might be inter-State, it is essential that there must be transport of goods from one State to another under the contract of sale or purchase. In Bengal Immunity Company Limited v. The State of Bihar  6 S.T.C. 446 occur the following observations which are apposite:
'A sale could be said to be in the course of inter-State trade only if two conditions concur: (1) A sale of goods, and (2) a transport of those goods from one State to another under the contract of sale. Unless both these conditions are satisfied, there can be no sale in the course of inter-State trade.' With reference to the analogous provision under Article 286(1)(b) prohibiting the imposition of tax on the sale or purchase of goods in the course of import or export, it has been held by this Court that it is only a sale or purchase which occasions the export or import of the goods out of or into the territory of India or a sale in the State by the exporter or importer by transfer of shipping documents, while the goods are beyond the customs barrier, that is within the exemption, and that a sale which precedes such export or import or follows it is not exempted, vide State of Travancore-Cochin v. Shanmugha Vilas Cashew Nut Factory  4 S.T.C. 205. On the same principles, a purchase made inside a State, for sale outside the State cannot itself be held to be in the course of inter-State trade, and the imposition of a tax thereon is not repugnant to Article 286(2) of the Constitution.
7. The same principles were upheld in the Cement Marketing Co. of India (Private) Ltd. v. The State of Mysore and Anr  14 S.T.C. 175. Kapur, J., said as follows:--
Thus the tests which have been laid down to bring a sale within inter-State sales are that the transaction must involve movement of goods across the border: Mohanlal Har'govind's case  6 S.T.C. 687; transactions are inter-State in which as a direct result of such sales the goods are actually delivered for consumption in another State: M/s. Ram Narain Sons Ltd. v. Assistant Commissioner of Sales Tax and Ors.  6 S.T.C. 627; a contract of sale must involve transport of goods from one State to another under the contract of sale: Bengal Immunity Co.'s case  6 S.T.C. 446. In the case of sales in the course of export or import the test laid down was a series of integrated activities commencing from an agreement of sale and ending with the delivery of goods to a common carrier for export by land or by sea: The Bombay Co. Ltd. Case  3 S.T.C. 434. In the course of was explained to mean a sale taking place not only during the activities directed to the end of the exportation of the goods out of the country but also as part of or connected with such activities, and 'integrated activities' was explained in similar language. This Court again accepted these tests in Endupuri Narasimham's case  12 S.T.C. 282. In Section 3 of the Central Sales Tax Act (Act 74 of 1956) the Legislature has accepted the principle governing inter-State sales as laid down in Mohanlal Hargovind's case3. The principles for determining when a sale or purchase of goods takes place in the course of inter-State sale or commerce outside the State are:
Section 3. A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase--
(a) occasions the movement of goods from one State to another; or
(b) is effected by a transfer of documents of title to the goods during their movement from one State to another'.
In Tata Iron & Steel Co. Ltd., Bombay v. S.R. Sarkar and Anr.  11 S.T.C. 655, Shah, J., in explaining what sales are covered by Clause (a) of Section 3 above said: Clause (a) of Section 3 covers sales, other than those included in Clause (b), in which the movement of goods from one State to another is the result of a covenant or incident of the contract of sale, and property in the goods passes in either State'....
8. This principle was also followed by a Bench decision of the Madras High Court in Indian Coffee Board, Batlagundu v. The State of Madras  7 S.T.C. 135. It was held there that a sale completed by delivery within the State of Madras to the purchaser or to his agent does not come within the scope of Article 286(2) even if the purchaser bought the goods with the intention of transporting them outside the State and did transport them outside the State. Unless both the conditions of (1) a sale of goods, and (2) a transport of those goods from one State to another under the contract of sale are satisfied, there cannot be an inter-State sale. Since the petitioner has referred to the condition relating to despatch F. O. R. in Calcutta for Kanpur, reference may be made to a Bench decision of the Madhya Pradesh High Court, C. P. Timber Works v. Commissioner of Sales Tax, M.P., Indore and Anr.  15 S.T.C. 602. In that case, the assessee entered into a contract of sale of timber with the Director-General of Stores, Supplies and Disposals, Government of India. The contract in that case was similar to the one we have to consider in the instant case. Under the contract, the place of delivery was F.O.R. a railway station within the State of Madhya Pradesh. The assessee kept the timber logs ready for inspection at that place. The inspecting authority inspected the timber, issued an inspection certificate and put a mark on the approved timber. The assessee despatched the timber by goods train to places outside the State, obtained the railway receipt in the name of the consignee, sent the receipt by registered post and received ninety per cent. of the price. The balance of ten per cent. was received by the assessee on receipt of the consignment in good condition by the consignee, who had a right to re-inspection at the place of destination. It was held that the actual delivery of timber was within the State of Madhya Pradesh and the property in the goods also passed to the purchaser within that State. Therefore, the State of Madhya Pradesh had the power to levy sales tax on the said transaction. This Bench decision is important because the facts are very similar to the present case. Mr. Banerjee argues that this case has been wrongly decided. The next case to be considered is a Supreme Court decision, Malayalam Plantations Ltd., Quilon v. The Deputy Commissioner of Agricultural Income-tax and Sales Tax, South Zone, Quilon  15 S.T.C. 665. It was held there that where the Explanation to Article 286(i)(a) of the Constitution of India is inapplicable, it is the 'passing of property within the State' that is intended to be fastened on for the purpose of determining whether a sale is 'inside' or 'outside' the State. Therefore subject to the operation of the 'Explanation', that State in which the property in the goods passes would be the only State which would have the power to levy a tax on the sale. The next case to be considered is a decision of mine, Gordhandas Lalji v. B. Banerjee and Ors. (Matter No. 24 of 1954; judgment dated 27th May, 1954). In that case, the dealer sold tea to various parties in Bombay and upon their instructions shipped them to foreign buyers. I held that the sale to the Bombay party was complete when tea was appropriated to the contract, billed for and the price realised. The shipping to foreign parts is no part of the sale by the petitioner to the Bombay parties, as it constituted an event which was post-sale. It might be that the whole object of purchase by the Bombay parties was to export to foreign parts, but that by itself would not exempt the purchase from sales tax. That was not the sale which occasioned the export. This judgment of mine was upheld by the Court of Appeal on 4th April, 1955. Against the said decision, an appeal was preferred to the Supreme Court. The Supreme Court also upheld my judgment and dismissed the appeal in Gordhandas Lalji v. B. Banerjee  9 S.T.C. 581. It was held that Section 5(2)(a)(v) of the Bengal Finance (Sales Tax) Act, 1941, would apply only to the sales of goods which are despatched by or on behalf of the dealer to an address outside West Bengal. As the goods were appropriated to the contract in West Bengal, their subsequent despatch outside West Bengal was not by the appellant but was by and on behalf of the Bombay party. Consequently, the appellant was not entitled to exemption under the said Act, nor was he entitled to exemption under Article 286(1)(b) of the Constitution.
9. The legal position may be summarised as follows: A contract for the sale of goods may be exempted from the payment of local tax in cases governed by the Constitution prior to the Sixth Amendment if it is an Explanation sale. In order to be such a sale, it is to be found as a fact that the goods under the contract were to be delivered in another State for consumption in that State. That is not the position in the present case. It would also be exempted if under the contract of sale the goods have to be delivered by the seller to the buyer at a place outside the State of West Bengal. It is the contract itself that must provide for this liability on the part of the seller. Even if the intention is clear that the purchaser would buy and then transport it outside the State, that would not be sufficient. The question is, where was the delivery made in fact and where did the property pass? In other words, the transportation outside the State must be a liability that arises under the contract itself. In the present case, the contract was for delivery within the State and it was, in fact, delivered within the State. It is true that the contract contained expressions indicating that the goods were indented for use outside the State and that the goods would eventually be despatched to Kanpur. It was, however, no part of the duty of the seller to make the despatch. Once it had delivered the goods for inspection at Calcutta and got the certificate, its duty was at an end. This is amply demonstrated by the conduct of the petitioner, who having delivered the goods at Calcutta to the inspecting authority, immediately billed the Government for the entire value. This point, therefore, should be held against the petitioner and appears to be amply supported by authority. My decision in the Indian Standard Wagon Co. Ltd. does not apply to the facts of the instant case. The second point argued by Mr. Banerjee is that the goods were appropriated at Kanpur and, therefore, the title in the goods did not pass to the buyer within the State. He first of all refers to Section 2(3) of the Indian Sale of Goods Act. According to the definition set out there, goods are said to be in a 'deliverable state' when they are in such a state that the buyer would under the contract be bound to take delivery of them. He next refers me to Section 23(1) of the same Act. It runs as follows:--'23(1). Where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made.
10. Mr. Banerjee has relied on a Supreme Court decision, Commissioner of Sales Tax, Eastern Division, Nagpur v. Husenali Adamji and Co. A.I.R. 1959 S.G. 887 In that case, the facts were as follows: One A, resident of Chanda in the erstwhile Central Provinces, entered into an agreement with the Western India Match Co. Ltd., for the supply of sawar logs. The goods to be supplied under the contract were to be despatched by A from railway stations in the Central Provinces to Ambernath in the Province of Bombay. It was there that the factory manager of the purchaser would inspect, measure and accept the same, if in his opinion they were in accordance with the contract at the time that the goods were in existence at all as logs, although they might have been in the form of standing timber. On the facts it was held that the appropriation to the contract was made at Ambernath and that is where the title to the goods passed and the Central Provinces could not make the seller liable to sales tax. In my opinion, this decision cannot help the petitioner because the facts are not analogous. The seller may have stacked his logs in the Central Provinces but the delivery was made at Ambernath, where they were inspected and accepted by the purchaser. In the instant case, the seller appropriated the goods to the contract and delivered them to the purchaser at Calcutta. They were inspected there and as soon as the certificate was granted the goods were found to be in terms of the contract. After that, the seller could have no further title to the goods. If at all, the Supreme Court decision is against the contention of the petitioner. I have already referred to the case decided by the Madhya Pradesh High Court, C. P. Timber Works v. Commissioner of Sales Tax, Madhya Pradesh, Indore  15 S.T.C. 602. The facts in that case were very much like the instant case. The contract was for sale of goods with the Director-General of Stores, Supplies and Disposals, Government of India. Under the contract, the place of delivery was F.O.R. a railway station within the State of Madhya Pradesh. The assessee kept the timber logs ready for inspection at that place. The inspecting authority inspected the timber, issued an inspection certificate and put a mark on the approved timber. The assessee despatched the timber by goods train to places outside the State, obtained the railway receipts in the name of the consignee, sent the receipts by registered post and received ninety per cent. of the price. The balance of ten per cent. was received by the assessee on receipt of the consignment in good condition by the consignee, who had a right of re-inspection at the place of destination. Even so, it was held that the delivery was within the State of Madhya Pradesh. The learned Standing Counsel has pointed out that there is no evidence in this case that the goods were, in fact, despatched to Kanpur. Since they were indented for use at Kanpur they were probably so despatched. But there is no evidence of that fact. Mr. Banerjee tried to use certain documents which were never used in the tribunals below and I cannot allow the facts to be developed in a way which is entirely different from the way it was marshalled hitherto. It is abundantly clear that after the goods were delivered at Hastings in Calcutta, the seller had no longer anything to do with the goods. It had no duty to despatch the same to Kanpur and, in fact, did not do so. I have already mentioned, that on the very same day that the goods were delivered the petitioner billed Government for the whole amount. It is true that under W.S.B. 133 there are two ways of delivering the goods. One is by delivering them to the inspecting authority and the second is by putting them on railway F.O.R. for a destination outside the State. Even assuming that in the latter case the delivery should be deemed to be outside the State, the facts in the instant case are otherwise. There is no question of the petitioner despatching the goods by railway. It delivered the goods to the inspecting authority locally and as soon as the inspecting authority found that the goods were in accordance with the contract, the matter ended so far as the seller was concerned. Mr. Banerjee argues that the decision of the Madhya Pradesh High Court is erroneous. I am unable to agree with him. But even if it is erroneous, it does not advance the matter further, because the facts in the present case are different. In Gordhandas Lalji v. B. Banerjee  9 S.T.G. 581, Gajendragadkar, J. (as he then was), said as follows:--
Shri Veda Vyas then attempted to challenge the correctness of this finding. It is clear that this is a finding of fact and it would normally not be open to the appellant to question the correctness of the findings of fact in appeals under Article 136 of the Constitution. But even on the merits we think the finding in question is perfectly correct. There can be no doubt that, with the unconditional appropriation of the goods to the contract by one of the parties with the consent of the other, property passes from the seller to the buyer. Shri Veda Vyas, however, relies on his conduct and suggests that until the goods were entrusted to the carrier title had not passed to the buyer.... We are...satisfied that the correctness of the finding made by the High Court on the question of appropriation cannot be effectively challenged by the appellant on the materials on record. If the goods were appropriated to the contract by the appellant with the consent, and to the knowledge, of the Bombay merchant, title to the goods clearly passed in favour of the Bombay party..
11. It is thus clear that even if the goods were appropriated to the contract and entrusted to the carrier in Calcutta, matters would not improve in favour of the petitioner. In fact, however, the goods were appropriated to the contract and delivered to the buyer in Calcutta. The inspecting authority must be deemed to be the buyer's agent for accepting delivery. Mr. Banerjee has referred me to a Supreme Court decision, Commissioner of Income-tax, Delhi v. P.M. Rathod & Co.  37 I.T.R. 145 In that case the facts were as follows: The respondents were a firm of manufacturers in Part B State. Their agents who went out to Part A States and Part C States to canvass orders, sometimes took advance in full or in part and after deducting their expenses remitted the balance to the respondents. The goods ordered were sent to the customers either by V.P.P. or by rail, 'and in the latter case the railway receipts in favour of self were sent through a bank to be delivered to the customers against payment of the demand draft drawn on the buyer, and the bank drafts when received were sent by the respondents for being cashed and credited to their accounts at Bombay in a Part A State. It was held that in the case of goods sent by railway, as the railway receipts, made in favour of self, could not be delivered to the buyer till the money was paid and although the goods had been handed over to a common carrier, the appropriation to the contract was only conditional and the performance was complete only when the moneys were paid and the railway receipts delivered, and these contracts must be taken to have been held in the Part A or Part C Stales. In my opinion, this decision does not help the petitioner. In the instant case, there was no such agreement about railway receipts issued in favour of self and sent to a bank to be delivered to the customer against payment of the demand draft drawn on the buyer. On the other hand, the goods were delivered in Calcutta and immediately billed for. There was no conditional appropriation. Mr. Banerjee next cites 'Benjamin on Sale', 8th Edn., at page 351. The learned author refers to the case of Sir James Laing & Sons v. Barclay  A.C. 35. In that case, the respondents contracted to build for an Italian company two steamers according to certain specifications. There was a special clause which stated--'The vessels will not be considered as delivered to and finally accepted by the purchasers until the said ships have passed the official trial trip in Genoa, have been approved in Genoa by the Italian emigration authorities, and all conditions of the contract have been fulfilled.' There were other conditions about payment and the appointment of an expert to superintend the construction of the vessel and the machinery. After several instalments have been paid the appellants arrested the ships for a debt due to them from the Italian company. The Court of Session discharged the arrestments on the ground that there was no evidence that the property in the ships had passed. On appeal to the House of Lords, with regard to one of the ships, it was argued that there was nothing to contradict the presumption that the payment of the instalments, coupled with the provision for inspection, passed the property in the ship, so far as it was built, to the buyers. The House of Lords, however, held that these facts were conclusive; that the contract was for a completed ship ; and that there was no evidence that the property had passed to the Italian company. This case depended on special facts. As mentioned above, there was a special clause as to when the property shall pass. In a case mentioned by the learned author appearing at the same page (II A.C. at 370) it was held that it was a question depending upon the construction of each contract, at what stage of the manufacture of an article the property therein is intended to pass, and a question of fact whether that stage has been reached. The learned author has also pointed out that just as in the case of Sir James Laing & Sons  A.C. 35, there was a special contract that the vessel will not be considered as delivered to and finally accepted by the purchaser, in the case of In re Blyth Shipbuilding and Dry Docks Co.  Ch. 494, there was a special clause providing that after the payment of the first instalment of the price the vessel should become and remain the absolute property of the purchaser. Romer, J., said that upon a true construction of the contract, an intention was indicated that the property, even in the uncompleted vessel, should pass, and he gave effect to that view. In the present case, the contract in Form No. W.S.B. 133 contemplates divers kinds of delivery. Delivery may be F.O.R. the despatching station, for destination outside the State. It may be subject to only part payment in the first instance and full payment after it is approved by the ultimate consignee or it may be delivered to the inspecting authority who acts as an agent of the purchaser. In each case, the legal consequences would be different. In the instant case, we are concerned with the last mentioned class of delivery. In my opinion, there can be no doubt that in such a case it was intended that upon delivery being made and as soon as the inspecting authority certifies that the goods were in accordance with the contract, the seller had nothing more to do with the goods. After the goods were delivered, inspected and billed for, it can no longer be said that the title remained in the seller and that the sale was not completed. It must be remembered that under the contract the place of delivery was Calcutta, inspection was to be at Calcutta, payment was to be made at Calcutta and it was an express term of the contract that in no case should payment be claimed from the consignee.
12. In the facts and circumstances of the instant case, I am of the opinion that the goods were delivered in Calcutta and the sale was completed within the State of West Bengal. As such, the sale is subject to the payment of sales tax and is not within any exemption either under the West Bengal Finance (Sales Tax) Act, 1941, or under Article 286 of the Constitution. The result is that the application fails and should be dismissed. The rule is discharged. Interim orders, if any, are vacated. There will be no order as to costs.