The decision of the H. C. in this case is not a "final Judgment" within the meaning of Article 133, Const. Ind. and, therefore, an appeal does not lie to the S. C.

Reuben, J.

1. This is an appln. for leave to appeal to the S. C. from a decision of this Ct. on a reference under Sec.21 (3), Bihar Sales Tax Act, 1944 (Bihar Act VI [6] of 1944), hereafter referred to as the taxing Act.

2. The period of assessment is 1-10-1944, to 31-3-1945. The accepted gross turnover of the assessee company petnr. during this period is Rs. 3,41,98,000. Deduction is claimed under Sec. 5, Sub-section (2), Clause (a) (v) of the taxing Act in respect of a turnover of Rs. 2,93,15,000. Under this clause, the turnover of the assessee is exempted from liability to pay tax to the extent that it is derived from

"sales of goods which are shown to the satisfaction of the Comr. to have been despatched by, or on behalf of, the dealer to an address outside Bihar."

The exemption is claimed in respect of goods despatched by the assessee company to addresses outside Bihar in pursuance of an agreement between it & the Imperial Tobacco Company of India, Ltd. By this agreement, the assessee Company contracted to despatch the goods manufactured by it, on behalf of the Imperial Tobacco Company of India, Ltd. & in the name of that company, to destinations inside Bihar or out of Bihar according to the directions of that company, which on its side, agreed to pay to the assessee company by way of remuneration the full cost of manufacture plus 25 per cent of such cost.

3. The reference was first heard by my learned brother, Das & Sarjoo Prasad JJ. On a difference between them, it was referred to B. P. Sinha J., who while agreeing with Das J. & disagreeing with Sarjoo Prasad J. as to the correct interpretation of the relevant clause of the taxing Act, has on another line of reasoning arrived at the same conclusion as Sarjoo Prasad J. On the facts, all their Lordships are agreed that the transactions between the two companies amount to sales, & that the sales were completed & the property in the goods had passed to the Imperial Tobacco Company of India, Ltd., before the despatch of the goods. Das J. considered that the taxing Act, in accordance with the accepted principle of- construing such Acts, must be interpreted strictly in favour of the subject & therefore, the physical despatch of the goods by the assessee was "despatch" by him within the meaning of the relevant clause of the taxing Act. In the opinion of Sarjoo Prasad J., Sec. 5, Sub-section (2), Clause (a) (v) has no application where the sale is complete before the despatch of the goods, & the title is no longer in the vendor. B. P. Sinha J. pointed out that Sec. 5, Sub-section (2), Clause (a) (v) lays stress on the Comr. being satisfied as to the despatch being by the dealer or otherwise. He held that the H. C. is bound to accept the finding of the Comr. that the goods were physically despatched by the assessee but the despatch was made by him on behalf of the vendee; in other words, the despatch must be held to be despatch by the vendee & therefore, not entitled to exemption from sales tax.

4. A preliminary point has been raised as to whether the reference to B. P. Sinha J. was competent & whether there is a lawful decision of this Ct. disposing of the reference under Sec.21, Sub-section (3) of the taxing Act, in respect of which decision leave to appeal can be asked for. The provision for a reference to a. third Judge is contained in Clause 28, Letters Patent of this H. C. & Section 98, Civil P. C. Clause 28 relates to a difference of opinion arising in the exercise of the H. C.s "original or appellate jurisdiction". Section 98 relates to a difference arising in appeal; under Sub-section (3) this section is subject to the provisions in the Letters Patent. In Birendra Kishor V/s. Secretary of State, 48 Cal. 766 : (A.I.R. (8) 1921 Cal. 262) for the purpose of deciding whether counsel should be instructed by Vakil or by Attorney, a reference made under a similar provision in Sec. 51, Income-tax Act, 1918 (VII [7] of 1918) was treated as relating to the civil appellate