JUDGMENT

UNTWALIA, J.:— In this appeal by special leave the question for determination is whether the appellant company is a dealer within the meaning of Sec. 2(b) of the Central Sales Tax Act, 1956 - hereinafter referred to as the Central Act, liable to pay sales tax thereunder.

2. The appellant, Bagal Kot Cement Co. Ltd., is a manufacturer of cement. For the period 1st April, 1961 to 31st March, 1962 it filed a Return before the Assessing Authority showing a total turnover of Rupees 1,11,02,243/-. The entire sum was shown as taxable turn-over on which an amount of Rs.2,25,317.55 had been collected and paid as tax. No claim was made on behalf of the appellant before the Assessing Authority that it was not liable to pay any sales tax. The Authority accepted the Return and assessed the tax as per the appellant s figure. It appears the appellant was advised thereafter to file an appeal before the Deputy Commissioner of Commercial Taxes and take the stand that in respect of the transactions in question it was not a dealer and was not liable to pay any tax. The Deputy Commissioner dismissed the appeal. A second appeal filed by the appellant before the Mysore Sales Tax Appellate Tribunal also failed. The company took up the matter in revision to the High Court under Section 23 of the Mysore Sales Tax Act, 1957 - hereinafter called the State Act, read with Section 9 (2) of the Central Act. The High Court dismissed the revision. Hence this appeal.

3. Under the Cement Control Orders, 1958 and 1961 the appellant was bound to sell the entire quantity of cement to the State Trading Corporation of India Ltd. By an agreement executed between the parties the Corporation appointed the Company as its selling agent for sale of cement to different customers on its behalf at the controlled price and in accordance with the instructions which may be given from time to time by the Corporation. Pursuant to the agreement the company made the inter-State sales and realized sales tax from the customers under the Central Act. Its contention is that being an agent and having effected all the sales under its direction it was not a dealer as defined in Section 2 (b) of the Central Act and hence was not liable to pay any sales tax thereunder. The liability was of the Corporation.

4. In our opinion there is no substance in the appellant s argument. After having realized the sales tax from the various customers and voluntarily and excontracts paid it as per the Return submitted it was ill-advised to take an unsustainable stand of its not being liable to pay sales tax under the Central Act.

5. There cannot be any doubt that the sales of cement made during the period in question in the course of inter-State trade were exigible to sales tax under the Central Act. The question for consideration is who was liable to pay it? The liability was of the dealer as defined in Section 2 (b). If the appellant company was the dealer which had made the sales as defined in Section 2 (g), then the liability to pay the tax under the charging Section 6 was its. If it was 359 not a dealer then obviously it was not liable to pay any tax.

6. To determine the point at issue as mentioned above it is necessary to advert to the primary facts and the course of conduct of the business of the appellant as per the terms of the agreement entered into with the State Trading Corporation. The High Court has pointed out that the Deputy Commissioner found :

(1) The Company was appointed by the State Trading Corporation as its selling agent;

(2) It had sold cement at the price specified in the Cement Control Order to the customers who held permits from the governmental authorities;

(3) The customers purchased the cement from the company directly and they were not aware of the identity of the principal namely the State Trading Corporation.

The High Court also refers to the fact that the appellant did not place the relevant papers pertaining to the transactions before the authorities below. But its learned