Judgment

FAZAL ALI, J.:- These appeals by special leave are directed against the order of the Commissioner of Sales Tax dated May, 5, 1970, rejecting the revision filed by the appellant before him against the order of the Appellate Assistant Commissioner, Sales Tax, imposing sales tax for the period April 1, 1958 to March 31, 1959 on consumption of motor spirit by the appellant for its own purposes which was treated by the Sales Tax Authorities as a sale to the appellant, and therefore falling squarely within the purview of S. 2 (1) of the Madhya Pradesh Sales of Motor Spirit and Lubricants Taxation, Act, 1957 as it stood prior to May 31, 1961. It also appears that for the period April 1, 1957 to March 31, 1958 the tax was levied under the Madhya Bharat Sales of Motor Spirit Taxation Act, 1953. The appellant primarily carries on the business of manufacturing sugar and incidentally the business of selling high speed diesel oil, petrol and lubricants from the petrol pump installed by the appellant in the factory premises. The appellant entered into an agreement with Caltex (India) Limited for supply of petrol and petroleum products to it on certain conditions. The relevant assessment years are 1-4-1957 to 31-3-1958; 1-4-1958 to 3-3-1959; 1-4-1959 to 31-3-1960 and 1-4-1960 to 31-3-1961. In the course of its business the appellant sold petrol to various trucks and other car owners and also consumed part of the petrol for its own purposes. In the instant appeals, we are only concerned with the consumption by the appellant of the quantity of petrol for its own purposes which has been, as we have indicated, treated as a sale and therefore exigible to sales tax.

2. The appellant filed an appeal against the order of the respondent - Sales Tax Officer - to the Appellate Authority under the Madhya Pradesh Sales of Motor Spirit and Taxation Act, 1957 - hereinafter referred to as the Act - and pari passu filed a petition under Art. 226 of the Constitution in the High Court of Madhya Pradesh challenging the constitutionality of the Act and the assessments made in pursuance thereof. The High Court, by its judgment dated January 25, 1961, dismissed the petition of the appellant. The appellant then approached this Court through a special leave petition and also a petition under Art. 32 of the Constitution but without any success. This Court by its judgment dated December 21, 1962, held that the High Court had erred in assuming jurisdiction in deciding disputed questions involved in the petition and should have insisted on the appellant to move the Appellate Authority provided under the Act. The petition under Art. 32, however, was allowed by this Court and a part of the definition of "sale" in S. 2 (1) of the Act was declared ultra vires. In the instant case, however, we are not concerned with this aspect of the matter.

3. In compliance with the order of this Court, the appellant filed an appeal before the Appellate Assistant Commissioner of Sales Tax which was allowed by his order dated March 6, 1963, and the case was remanded to the Sales Tax Officer for fresh assessment after making necessary enquiries. Thereafter the respondent afresh by his order dated October 20, 1963, and made similar assessments for the other periods. Against this order the appellant moved this Court again, but ultimately withdrew the petition and filed a revision petition under S. 28 of the Act to the Commissioner of Sales Tax, Madhya Pradesh. The Commissioner, after hearing the arguments of both the parties, invited further documents and after making further queries upheld the order of the Appellate Assistant Commissioner of Sales Tax holding that the appellant was liable to pay sales tax inasmuch as the contract which was entered into between the appellant and Caltex (India) Ltd., was a pure and simple contract of agency and not a contract of sale. The Commissioner opined that as the contract was one of agency, the title to the property remained in the Caltex (India) L