Judgement

RAMASWAMI, J.: This appeal is brought by special leave against the judgment of the High Court of Judicature at Bombay dated April 23, 1962 on a reference by the Bombay Sales Tax Tribunal under S. 34(1) of the Bombay Sales Tax Act, 1953.

2. The appellant is a manufacturer of footwear in Bombay. During the assessment year April 1, 1954 to March 31. 1955, the appellant purchased rubber from certain dealers residing in the State of Cochin. These purchases were assessed to purchase tax by the Sales Tax Officer under S. 10(a) of the Bombay Sales Tax Act (Bombay Act III of 1953-hereinafter referred to as the Act) as they were made "from a person who is not a registered dealer". The Cochin sellers had their agents in Bombay who received orders on behalf of the appellant. The orders of the appellant were accepted by the agents in Bombay and the goods were shipped by the sellers from Cochin to Bombay. After the goods were shipped, the demand drafts were forwarded along with the Bills of Lading by the vendors to their bankers in Bombay. The Bankers endorsed the bill of lading in Bombay and handed it over to purchasers in Bombay in exchange for the price. The price was also paid in Bombay. In the Bills of Lading the sellers in Cochin were described as both consignors and consignees. After the goods were shipped, an invoice was drawn on the appellant in which were printed the following words:

"Shipped per S. S. ---------------------from Cochin to Bombay on account and risk of Messrs Carona Sahu Co. Ltd., 15-A Elphinstone Circle, Fort, Bombay".For the period April 1, 1954 to March 31, 1955, the appellant was assessed to purchase tax by the Sales Tax Officer, Licence Circle, Bombay by his assessment order dated March 31, 1956 under Cl. (a) of S. 10 of the Act. The appellant preferred an appeal under S. 30 of the Act to the Assistant Collector of Sales Tax, Appeals II, Bombay Circle, Bombay but it was dismissed. A revision application to the Additional Collector of Sales Tax was dismissed. The appellant thereafter moved the Sales Tax Appellate Tribunal at Bombay for revision of the order passed by the Additional Collector of Sales Tax. By its judgment dated September 4, 1959 the Bombay Sales Tax Tribunal dismissed the revision application and confirmed the order made by the Sales Tax Authorities. At the instance of the appellant, the Sales Tax Tribunal referred the following questions of law for decision of the Bombay High Court under S. 34 (1) of the Act:

1. Whether on the facts and circumstances of the case, the property in the rubber consignments passed to the applicant in Cochin i.e. outside the State of Bombay?

2. Whether the purchase tax under S. 10(a) is leviable in respect of the purchases in dispute?

By its judgment dated April 23, 1962 the Bombay High Court answered both the questions of law in favour of the State and against the appellant.

3. The first question that arises for determination in this case is, whether on the facts and circumstances of the case, the property in the rubber consignments passed to the appellant in Cochin i.e. outside the territorial limits of the State of Bombay. In this connection the facts found by the Sales Tax Tribunal are that the Cochin sellers had their agents in Bombay who received the orders of the appellant and arranged for the shipping of the goods. In accordance with these orders the goods were shipped by the Cochin sellers from Cochin to Bombay. The Bills of Lading were in the name of the sellers as consignors and consignees. The invoices however showed that the goods were shipped at the "risk and on account of of M/s. Carona Sahu and Company (P) Ltd". The insurance charges were borne by the appellant who also paid freight and other charges. The bills of lading were sent by the sellers through the bank to be delivered to the buyers in Bombay on payment of the price of the goods. In view of these facts, the High Court held that the property was intended by the parties to pass in Bombay and