1. This appeal is directed against the Order of the Additional Collector of Customs, Madurai, dated 29-10-1985 holding that the appellant has no locus standi to claim the goods absolutely confiscated under the impugned order.
2. Preventive Officers of the Customs Department, Madurai, visited M/s.
Madurai Radha Transport's Office on 25-3-1985 and interrogated the lorry firm's Manager, Shri Sankaran on the basis of specific recorded information as to whether the transport company had received 18 bundles of Indian lungies from Madras and if so, called upon the Manager to produce the connected documents in relation thereto. The Manager produced the Goods Consignment Note bearing No. 20841 dated 21-3-1985 issued by M/s. Madurai Radha Transport, Madras with freight paid by the consigner, Consignment Forwarding Note dated 21-3-1985 forwarded by the appellant herein and the Cash Bill Invoice No. 2908 - 2927 for 1800 lungies valued at Rs. 52,200/-, covering nine bundles. The Transport Company also produced for the scrutiny of the authorities another Goods Consignment Note bearing No. 20841 dated 21-3-1985 with Goods Forwarding Note of even date and Cash Bill Invoice bearing No. 2928 to 2950 for 1800 lungies valued at Rs. 52,200/- covering bundles 10 to 18.
The said 18 bundles were consigned to one Mr. Richard, No. 35, East Veli Street, Madurai and verification by the authorities in that address showed that the name and address was fictitious. The goods were therefore, seized as per law under mahazar attested by witnesses on the reasonable belief that they were meant for illegal export via Madurai on 29-3-1985. Shri M.K. Hameed Sultan, partner of the appellant-firm claimed the ownership of the goods under seizure on the grounds that the consignee Richard had not paid for the goods. The claim of the appellant for the goods under seizure was rejected by the adjudicating authority under the impugned order on the ground that the appellant has no locus standi to claim the goods inasmuch as title to the goods has passed on to the consignee and the appellant has come by way of appeal before this Tribunal as against the said finding of the adjudicating authority under the impugned order.
3. Shri Ghani, the learned counsel for the appellant submitted that the lorry receipt in relation to the goods in question was very much with the appellant besides the original invoice which would show that the appellant has not parted with the title to the goods. The learned counsel also drew our attention to the appellant's letter dated 27-3-1985 to M/s. Madurai Radha Transport, requesting them to re-book the goods under seizure as the consignee did not turn up to pay for the goods and collect the Way Bill from the appellant. Mere despatch of the goods in the name of the consignee without parting the relevant documents such as the original invoice and lorry bill, it was contended would not clothe the consignee with any rights to the goods and in this view of the matter, the learned counsel assailed the reasoning of the adjudicating authority under the impugned order as incorrect.
4. The learned D.R. countering the submissions of the learned counsel for the appellant urged that the seizure of the goods in the instant case, was on the basis of specific information. The consignee, it was urged by the learned Departmental Representative, is a fictitious person and it is inconceivable that goods of substantial value could be despatched to a consignee without the receipt of consideration for the same, by the consignor himself even footing the freight charges. The D.R. also highlighted the non-production of the account books by the appellant before the authorities and also their belated claim in regard to the goods.
5. We have carefully considered the submissions of the parties herein.
The fundamental question that arises for our consideration in the appeal is whether the appellant retained the title in themselves in the goods under seizure so as to claim the same back or has parted with the title by divesting themselves of ownership of the goods under seizure dis-entitling them from making a claim to the goods as owner under law.
The facts remain that the goods have been consigned in favour of one Mr. Richard of Madurai. To a question from the- Bench, the learned counsel fairly conceded that the goods were not sold on any credit bills but only on cash bills. It is also not disputed that notwithstanding the fact that the appellant made a claim to ownership of the goods under seizure, nobody on behalf of the appellant company appeared before the Customs authorities nor any documentary evidence, such as, voucher, ledger, account book etc., of the appellant's company supporting the claim of ownership was produced before the authorities.
If the title to the goods is lost to the apellant by reason of a sale under the provisions of the Sale of Goods Act, 1930, the appellants in law do not have any right to claim the goods on the footing of ownership. Under the provisions of Sale of Goods Act, 1930, the controlling factor, such as the passing of transfer of property constitutes the most important element relating to sale of goods. It is indisputable that in terms of the provisions of Sale of Goods Act referred to Supra, in respect of an unconditional contract for the sale of goods in question, the payment of the price or the delivery of the goods is not necessary for passing the property. The main criterion is not whether there is payment of price of the goods but rather, if there was any intention to transfer ownership of property either presently or in future. The conduct of the parties and circumstances of a particular case would be relevant factors in this regard. Physical delivery of the goods is not essential for passing of title in goods in favour of the consigne. In the instant case, even according to the appellant, the goods were despatched in favour of a consignee to Madurai and a cash bill has been drawn up in respect of the transaction. It is incontrovertible that in the circumstances the appellant intended to sell the goods under seizure in favour of the consignee and in furtherance of such intention, despatched the goods to Madurai and also drew up a cash bill and thus the sale has become complete by divesting the appellant of any title in or property to the goods under seizure.
The plea of the learned counsel that possession of the original invoice and lorry receipt would clothe him with rights of ownership cannot be countenanced in law. It is a settled proposition of law that lorry receipt is not a document of title. A way bill issued by the public carrier is not specifically included in the definition of Documents of Title under Section 2(1) of Sale of Goods Act, 1930.
6. Reference may usefully be made in this connection to the ratio of the Division Bench ruling of the Karnataka High Court in the case of The Canara Industrial and Banking Syndicate Limited, Udipi, versus V.Ramachandra Ganapathy Prabhu and Anr. reported in AIR 1968 Mysore 133 (V.55 c 37). We therefore, hold that in the facts and circumstances of this case, there was a contract for the sale of the goods in question and this fact is not controverted even by the learned counsel for the appellant and consequent on such a contract for sale, the property in the goods stood transferred in favour of the (sic), namely, the consignee, the moment the parties to the contract intenoed it to be transferred. In such a situation, the sale, whether it is a cash sale or credit sale, effects a transfer of general property in the goods to the buyer and creates a jus-in-rem. The mere retention of the original invoice and the lorry receipt would be irrelevant and inconsequential in deciding the question relating to the passing of title or property in the goods in the context of the admitted fact that the appellant intended to sell and, did sell the goods. W therefore, hold that the appellant has no locus standi to make a claim for the goods under seizure and in this view of the matter, we sustain the finding of the adjudicating authority under the impugned order. Inasmuch as we have held that the appellant had no title to the goods under seizure and no locus standi to make a claim therefore, we do not feel called upon to pronounce upon the question as to whether the goods under seizure are liable for confiscation on the ground that they were improperly attempted to be exported out of India in terms of Section 113 of the Act. In the result, the appeal is dismissed.