The main legal point established in the judgment is that the title to the goods passed to the buyer at Jogbani railway station, making the transaction taxable under the provisions of the Bihar Sales-tax Act.

Ramaswami, J.

1. In this case the assessee, Messrs. B. N. Guha and Company, is an incorporated body with its registered office at Calcutta. The Company has taken lease of timber forest in Nepal and has built godowns and offices in Nepal territory close to the Jogbani railway station in Bihar State. The Company manufactures timber sleepers, squares, logs etc., at their workshop. The Company has taken a big railway contract and the bulk of the timber manufactured by it is supplied to the Railways and despatched to different destination from Jogbani railway station after obtaining instructions from the Sleeper Control Office. For the period from 1-7-1947 to 31-3-1948 the Sales-tax Officer determined the taxable turnover to be Rs. 4,50,061 and imposed sales-tax amounting to Rs. 7,032/3/-. The objection of the Company was that no sale took place in Bihar since the wooden sleepers were manufactured in Nepal and despatched from Jogbani Railway station to places outside the Bihar State. It was conceded on the part of the assessee that the goods were stored in its godown at Jogbani so long as wagons were not available. But the contention of the assessee was that the sale did- not take place in Bihar and there was no liability to pay sales-tax. The objection was overruled by the Sales-tax Officer. An appeal was taken to the Deputy Commissioner of Commercial-taxes but the appeal was dismissed. The assessee went up to the Board of Revenue in a revision. The Board allowed the claim of the assessee to the extent that a sum of Rs. 78,211 which represented the sale of timber despatched to the head-office at Calcutta, was excluded from the taxable turnover of the assessee. As regards the balance of Rupees 3,80,354/12/- which represented the sale of sleepers to Railway, the Board of Revenue affirmed the order of the Sales-tax Officer and dismissed the revision application.

2. In this state of facts the Board of Revenue has referred the following question of law for the opinion of the High Court :

"Whether in the facts and circumstances of this case the firm of Messrs. B. N. Guha & , Co. is liable to pay sales-tax on the sale of timber to the extent of Rs. 3,80,354/12/-?"

3. The main question presented for determination in this case is whether the title to the goods passed to the purchaser within the territorial limits of Bihar State. The contention on behalf of the petitioner is that title passed to the buyer not at Jogbani railway station but when the goods reached the consignee at the respective destinations which are admittedly located outside the territory of Bihar. A contrary view was put forward on behalf of the State of Bihar. It was argued that title passed to the buyer at Jogbani railway station as soon as the timber sleepers were appropriated on behalf of the buyer towards the contract and when the goods were loaded into the railway wagons. In this connection Sec.23, Sale of Goods Act is important. Sec.23(1) states :

"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."

Sec.23(2) enacts :

"Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buy or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract."

The question therefore arises whether the goods were unconditionally appropriated to the contract at Jogbani railway station, either by the seller with the assent of the buyer or by the buyer with the assent of the seller. The question mus