Section 64A of the Sale of Goods Act is attracted when there is an increase in excise duty on the raw material used to manufacture the finished goods, which results in an increase in the cost of production of the finished goods.

( 1 ) THESE appeals- come before me on a difference of opinion between my learned brothers Sachar, J. and Kumar, J.

( 2 ) THE appellant had entered into a contract with the respondent to supply the following:

" (A) Gapes waterproofed, with detachable hoods made from Cotton Canvas special (chemically) waterproofed mineral Khakhi. (b) Coats waterproofed, with detachable hoods made from cotton canvas, special (chemically) waterproofed, mineral Khakhi. (e) Coats, waterproof (without Hood), made from cotton canvas, special (chemically) waterproofed. Dyed Mineral Khakhi. "

( 3 ) SUBSEQUENT to the contract being entered upon, it is not disputed, excise duty payable on cotton canvas was increased. The appellant, therefore, claimed a further sum of Rs. 2,21,695. 36 on account of increase in costs of production of the above articles. The respondent disputed its liability to pay the amount. Accordingly, the matter was referred to arbitration in terms of the arbitration agreement between the parties. Shri P. H. Ramchandani, the sole arbitrator, by an award dated January 29, 1972 rejected the claim of the appellant observing that the duty was increased on the raw material, that is, on cotton canvas and not on the finished goods which were required to be supplied under the contract. He further held that the appellant could not take advantage of section 64a of the Sale of Goods Act, 1930. The respondent moved anapplication under Section 14 of the Arbitration Act, 1940 for filing of the award and making the same a rule of the Court. The appellant filed objections against the award. These two matters were registered as two suits on the Original Side of this Court. The learned Single Judge by his judgment dated April 30, 1973 made the award a rule of the Court and passed a decree in terms thereof. He dismissed the objections Filed by the appellant. In consequence, the appellant filed two appeals F. A. O. (OS) 47 and F. A. O. (OS) 48 of 1973. These came up for hearing before Sachar and Kumar, JJ. As noticed earlier, the two learned Judges have given differing opinions. Sachar, J. has held that Section 64a of ihe Sale of Goods Act would not be attracted and the view expressed by learned Single Judge was correct. Kumar, J on the other hand, has taken the view that it would be attracted.

( 4 ) SECTION 64 A of the Sale of Goods Act reads as under :-

" (A) Unless adifferent intention appears from the terms of the contract, in the event of any tax of the nature described in Subsection (2) being imposed, increased, decreased or remitted in respect of any goods after the making of any contract for the sale or purchase of such goods without stipulation as to the payment of lax where tax was not chargeable at the time of the making of the contract, or for the sale on purchase of such goods tax, paid where tax was chargeable at that time,- (a) if such imposition or increase to takes effect that the tax or increased tax, as the case may be) or any part of such tax is paid or is payable, the seller may add so much to the contract price as will be equivalent to the amount paid or payable in respect of such tax or increase of tax, and he shall be entitled to be paid and to sue for and recover such addition ; and (b) if such decrease or remission so takes effect that the decreased tax only, or no tax, as the case may be, is paid or is payble, the buyer may deduct so much from the contract price as will be equivalent, to the decrease of tax or remitted tax, and he shall not be liable to pay, or be sued for, or in respect of, such deduction. (2) The provisions of Sub-section (1) apply to the following taxes, namely :- (a) any duty of customs or excise on goods ; (b) any tax on the sale or purchase of goods.

( 5 ) BOTH my learned brothers are agreed that Section 15 of the Sale of Goods Act would govern the contract in question. The goods agreed to be sold by the appellant were goods which were to be identified by description. It is, therefore, necessar