ORDER
P.V. Dixit, C.J.
1. This is an application under Articles 226 and 227 of the Constitution for the issue of a writ of certiorari for quashing an order passed by the Sales Tax Officer, Jabalpur, on 1lth March, 1955, assessing the petitioner-firm to sales tax in the sum of Rs. 8,868-12-0 for the period from 1st January, 1952, to 31st December, 1952, the decision dated 22nd February, 1959, of the Appellate Assistant Commissioner of Sales Tax upholding in appeal the order of the Sales Tax Officer, and the decision dated 30th November, 1962, of the Commissioner of Sales Tax, affirming the order of the Appellate Assistant Commissioner.
2. The petitioner-firm, which has its head office at Kanpur and a branch in the State of Madhya Pradesh at Mandla, carried on the business of supply of timber. During the course of its business, it entered into a contract with the Director-General of Stores, Supplies and Disposals, Government of India, New Delhi (hereinafter called the Director) for the supply of timber according to the terms of the contract. For the period from 1st January, 1952, to 31st December, 1952, the petitioner was assessed to sales tax in respect of timber booked by rail from Mandla Fort railway station to places outside the State. Before the Sales Tax Officer, the assessee contended that it was not liable to pay sales tax on the timber supplied by virtue of Section 27-A of the Central Provinces and Berar Sales Tax Act, 1947 (hereinafter referred to as the Act), and Article 286 of the Constitution, as it stood prior to the amendment made by the Constitution (Sixth Amendment) Act, 1956. This objection was overruled by the Sales Tax Officer, who held that on a construction of the terms of the contract concluded between the petitioner-firm and the Director, the property in the goods passed to the buyer in this State and that the Explanation to Article 286 had no applicability inasmuch as the delivery of goods at places outside the State was not as a direct result of the sale for the purpose of consumption outside the State. Accordingly, the Sales Tax Officer rejected the petitioner's claim for exclusion from his turnover the sale transactions of supply of timber according to the contract. In appeal, the Appellate Assistant Commissioner, Jabalpur, agreed with the view taken by the Sales Tax Officer. On an examination of the terms of the contract between the petitioner and the Director, the Commissioner of Sales Tax also affirmed the view that title in the goods passed within Madhya Pradesh and the sales were also completed there and the delivery of goods was also within the State of Madhya Pradesh and that 'the subsequent movement of goods to places outside the State is for the better enjoyment of what had been earlier acquired.'
3. The petitioner contests his liability to tax on the same grounds which were urged before the taxing authorities. It is contended that according to the contract between the petitioner and the Director, timber was sent to purchasers for consumption outside the State of Madhya Pradesh and was actually delivered as a direct result of the sale for the purpose of consumption in the States of the purchasers ; that property in the goods, therefore, passed in the respective States of the consignees under Explanation to Article 286(1) of the Constitution; and that consequently the State of Madhya Pradesh had no right to tax the sales. It was also urged that as the sales took place outside the State of Madhya Pradesh, they were covered by Section 27-A (1)(a) of the Act and not liable to tax.
4. In the return filed on behalf of the respondents opposing the petition, it has been stated with detailed reference to the terms of the contract between the petitioner and the Director that those terms indicated that the property in goods passed to the buyer within the State of Madhya Pradesh; that the goods were delivered in this State and not in States outside the State of Madhya Pradesh as a direct result of the sale for the purpose of consumption in those States, and in despatching the goods outside the State according to the instructions given by the buyers from time to time the petitioner acted as an agent of the purchasers; and that the sales of timber were, therefore, liable to be taxed under the Act and did not fall either under Section 27-A(1)(a) of the Act or Article 286(1)(a) and the Explanation to it. The respondents have also raised the objection that the petitioner had a right of appeal against the decision of the Appellate Assistant Commissioner and could have also brought the matter to this Court on a reference under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958, and that as it did not avail itself of this remedy, it was not entitled to any relief under Articles 226 and 227 of the Constitution.
5. Two questions arise for determination in this case, namely, first, whether there was a completed sale of timber by the petitioner to the Director in Madhya Pradesh and whether the property in the goods passed in that State ; and, secondly, whether, even if the sale was completed in Madhya Pradesh, the goods were delivered for consumption outside the State as a direct result of sale. If the sale was completed in the State of Madhya Pradesh, property in the goods also passed there and the goods were also actually delivered to the buyer in the State of Madhya Pradesh, then the petitioner is undoubtedly liable to pay sales tax in respect of timber sold by it to the Director. If, on the other hand, as a direct result of the sale transactions, the timber was delivered for consumption outside the State of Madhya Pradesh, then notwithstanding the fact that property in the goods passed in the State of Madhya Pradesh, the sales would not be liable to any tax under the Act by reason of the Explanation to Article 286 (1) of the Constitution. This position cannot be disputed in view of the decisions of the Supreme Court in Burmah-Shell Oil Storage and Distributing Co. v. Commercial Tax Officer A.I.R. 1961 S.C. 315 , India Copper Corporation Ltd. v. State of Bihar [1961] 12 S.T.C. 56 and A. V. Thomas & Co., Ltd. v. Deputy Commissioner of Agricultural Income-tax and Sales Tax [1963] 14 S.T.C. 363. All these cases lay down that for the purposes of determining whether under Article 286(1), as it stood before the Constitution (Sixth Amendment) Act, 1956, a sale is 'inside' or 'outside' the State, it is the passing of property within the State that is intended to be fastened on and, therefore, subject to the operation of the Explanation that State in which the property passed would be the only State which would have the power to levy a tax on the sale ; where the Explanation applies, the sale transaction is by legal fiction deemed to have taken place 'inside' the State of delivery and, therefore, 'outside' the State in which the property has passed.
6. The determination of the two questions stated above depends on the construction of the terms of the contract between the assessee and the Director. The petitioner's tender for the contract of supply of timber was accepted on 15th December, 1951. The form of acceptance has been exhibited as annexure-A to the petition. The acceptance was subject to the conditions mentioned in ' Acceptance of Tender Form '. It was also, as stated in Clause 11 of the Acceptance of Tender Form, subject to the conditions of the contract as contained in Form No. W. S. B. 133. The petitioner has not exhibited the tender form. It had produced the form before the Sales Tax Officer, the Appellate Assistant Commissioner and the Commissioner of Sales Tax. The tender form is, however, not to be found on the record. Be that as it may, according to the conditions of the contract narrated by the Sales Tax Authorities in their impugned orders and the statements made by the petitioner itself in this application, the undisputed course of business between the assessee and the Director was this. Under the terms of the contract, the petitioner was required to keep the timber logs ready and available for inspection at Mandla Fort and other stations, by A.I.G.S., G.S.I.D., Kanpur, or an officer acting for him. The inspecting authority, after inspecting the timber, issued an inspection certificate and also put a hammer-mark on the timber approved. The approved timber also bore the private mark of the petitioner. The applicant was then required to despatch the timber by ' goods train in full wagon load on Military Credit Notes ' to the Commandant, C.O.D. Chowki, or the consignee intimated by the C.O.D. Chowki. The place of delivery was F.O.R. Mandla Fort and other stations that were to be intimated. The petitioner had to obtain Military Credit Notes from the inspector and was required to send the railway receipt to the consignee by registered post. As soon as the goods were booked by the railway, the applicant was required to inform, by telegram or express letter, the consignee about the despatch of timber giving the number of wagons and the railway receipt number. The assessee was also required to place in each wagon an invoice or packing note showing the number of planks by sizes and their cubic capacity. When the timber reached the place of destination, the consignee was entitled to re-inspect the goods, check the shortage if any, and reject the timber not conforming to the specifications. The assessee was paid ninety per cent, of the price of each consignment on proof of despatch of timber to the consignee from railway station. The proof had to be furnished by sending copies of inspection notes and railway receipts to the authorities responsible for payment. The balance of ten per cent, was to be paid to the assessee on receipt of the consignment in good condition by the consignee. One of the conditions embodied in the Acceptance of Tender Form was that in the event of delay in the despatch of the passed timber, the assessee should stock the goods suitably in consultation with the inspector in order to avoid deterioration from natural causes. This arrangement was, however, without prejudice to the Director's right under the general conditions of the contract.
7. It is abundantly plain from the above terms that the sale was ' for F.O.R. Mandla Fort ' and timber was delivered to the Director at that place. It was never the case of the petitioner before the taxing authorities and before us that any place other than Mandla Fort was intimated to it as place of delivery in terms of Clause 11 of the Acceptance of Tender Form. Soon after the despatch of timber, the assessee lost the right and power of disposal over them by completely parting with the document of title in its possession, namely, the railway receipt made out in the name of the consignee by sending it to him by registered post. It also received ninety per cent, of the price on proof of inspection and despatch from Mandla Fort. All these features of the sale show that the sale was completed in Mandla, the property in the goods passing to the Director at that place, and the timber was also actually delivered to the Director at the said place. In the Acceptance of Tender Form the place of delivery was specifically stated to be ' F.O.R. Mandla Fort '. The terms about inspection at the station of despatch, re-inspection at the place of destination, the payment of ninety per cent, price soon after the despatch and the balance of ten per cent, on receipt of the consignment in good condition by the consignee, and the rejection of goods on re-inspection at the place of destination, would become meaningless if it were to be held that the agreement between the parties was that the timber should be actually delivered to the Director at the place of destination, that is, at the place where the goods were sent to the consignee. Again, the term about the assessee being responsible for making suitable arrangement for stocking the timber, in consultation with the inspector, in order to avoid deterioration till they were despatched, and this arrangement being without prejudice to the Director's right under the general conditions of the contract showed that the delivery of timber to the Director was at Mandla Fort where the timber was inspected. If after inspection the assessee remained the owner thereof and had the right of disposal over the timber, there was no necessity to embody this condition in the Acceptance of Tender Form. The cumulative effect of all these terms is that the property in timber passed to the Director at Mandla and the goods were actually delivered to him at that place. The matter of delivery is really clinched by the term in the Acceptance of Tender Form specifying ' F.O.R. Mandla Fort ' as the place of delivery.
8. Shri Dharmadhikari, learned counsel appearing for the assessed, did not dispute that property in the goods passed in the State of Madhya Pradesh. He, however, urged that the actual delivery of timber was not at Mandla Fort station but at places outside the State of Madhya Pradesh were timber was despatched. It was contended that ' F.O.R. Mandla Fort ' was mentioned in the contract merely in order to ascertain the price ; that though property in the timber might have passed to the Director when goods were put on rail at Mandla, the delivery of timber to the railway for despatch after approval on inspection was only a constructive delivery under Section 39 of the Sale of Goods Act, 1930; and that timber was actually delivered at places outside the State as a direct result of the contract of sale. It was also submitted that the Sales Tax Officer, the Appellate Assistant Commissioner and the Commissioner of Sales Tax, all erred in holding that the contract form produced before them by the petitioner contained a clause providing that the timber inspected and approved at the despatch station shall be deemed to have been fully delivered to the Director and the timber reinspected at the destination and rejected shall be deemed to have been not delivered ; and that when the contract did not contain any such term, the taxing authorities erred in holding that the actual delivery of the timber was at Mandla Fort.
9. We are unable to accede to the contention advanced on behalf of the assessee which totally overlooks the significance of the term ' F.O.R. Mandla Fort ' as the place of delivery. It is quite true that the term ' F.O.R.' can be used to qualify the place of delivery in a particular contract, and can also be used to qualify the price. Here, it was used in relation to the place of delivery. The term in the Acceptance of Tender Form about the place of delivery as ' F.O.R. Mandla Fort ' was a special contract between the parties with regard to the place of delivery, namely, Mandla Fort railway station. When the term ' F.O.R.' is used to qualify the place of delivery, then it means that the seller's liability is to place the goods at his own expense at the place of delivery. The statement of law relating to F.O.R. contracts has been stated in Halsbury's Laws of England (3rd Edn., Vol. XXXIV at page 178) thus-
Under a free alongside contract (f.a.s.) the seller undertakes to deliver the goods alongside the ship at his own expense, and under a free on rail contract (f.o.r.) the seller undertakes to deliver the goods into railway wagons or at the station (depending on the practice of the particular railway) at his own expense. These contracts differ from the ordinary inland contract of sale only in respect of the place at which delivery is to be made, which puts on the seller an item of cost over and above that of the goods themselves, and also prima facie fixes the point at which the property passes and the risk falls upon the buyer and the price becomes payable.
The significance of the term in the contract concluded between the parties with regard to the place of delivery as ' F.O.R. Mandla Fort' is that the timber was to be actually delivered by the petitioner to the purchaser at the railway station at its own expense. It is important to note that delivery of goods at a particular railway station under the term of ' F.O.R. that station ' is not any delivery of goods to a carrier for the purpose of transmitting them to the buyer within the meaning of Section 39(1) of the Sale of Goods Act. In regard to the place of delivery, the term ' F.O.R.' can be used in connection with either the place of despatch of the goods or the place of their destination. Where goods are to be delivered ' F.O.R. the place of destination ', there is of course no question of their further movement. When they are delivered ' F.O.R. the place of despatch ', then their transportation to various places is not as a condition attached to the contract of sale but is according to the instructions given by the purchaser. For the applicability of Section 39(1) of the Sale of Goods Act, it is essential that in pursuance of a contract of sale the seller must be authorized or required to send the goods to the buyer. When there is such a stipulation, then the delivery of goods to a carrier is for the purpose of their transmission to the buyer and that delivery to the carrier is prima facie deemed to be delivery of the goods to the buyer. If in a contract of sale, the place of delivery is fixed as ' F.O.R. the place of despatch ', then the goods are actually delivered to the buyer at that place. That being so, there cannot be again a ' delivery ' of the goods to the buyer at any other place merely because they are subsequently transported by the railway according to the instructions given by the parties. Section 39 of the Sale of Goods Act thus does not come into play when in a contract of sale there is an express stipulation that the goods shall be delivered ' F.O.R. the place of despatch '. In Bengal Immunity Company Ltd. v. State of Bihar [1955] 2 S.C.R, Venkatarama Ayyar, J., pointed out (at pages 834-835) that Section 39(1) proceeds on the assumption that there was in fact no delivery to the purchaser, actual or otherwise, and on the footing that the common carrier is not the agent of the buyer with reference to actual delivery but that he is the agent of the purchaser for transmission of goods to him, and that the purpose of the fiction created by Section 39(1) that delivery to the common carrier shall be prima facie deemed to be delivery to the buyer, is to fix on whom the loss is to fallin case the goods are lost or damaged in the course of transit. The learned Judge further pointed out that where no such question arises, the fiction has to be ignored and the matter has to be decided on the factual basis of the actual delivery of goods. If a contract stipulates that the seller shall deliver the goods 'F.O.R. certain place', then the actual delivery to the buyer is at that place, and thenceforward the goods are at the risk of the buyer from the time they are delivered to him. There can, therefore, be no question of the operation of Section 39(1) in the present case when the assessee contracted to deliver timber to the Director 'F.O.R. Mandla Fort'. It must be noted that Section 39 of the Sale of Goods Act does not impose any legal restriction on the freedom of the buyer and the seller to make their own arrangements as to the terms on which the goods are to be delivered to a carrier for transit. The Section applies only when the seller is required to send the goods to the buyer in pursuance of a contract of sale. Where parties to a sale transaction agree between themselves that the seller should deliver goods to the buyer F.O.R. the place of despatch, the effect of the arrangement is to Rule out the operation of Section 39 of the Sale of Goods Act.
10. When, therefore, under the term 'F.O.R. Mandla Fort' the actual delivery of timber to the purchaser was at that place, the transport and delivery of timber by rail to the consignees at various places outside the State as instructed by the parties cannot be regarded as actual delivery to the purchasers at places outside the State as a direct result of the sale transactions so as to attract Explanation to Article 286(1)(a) of the Constitution. The movement of timber from Mandla Fort to places outside the State was not as a result of any stipulation between the parties that delivery of timber should be outside the State. . It was subsequent to the completion of the sale in this State and after the actual delivery of goods to the purchaser, namely, the Director. If there had been a stipulation in the contract between the parties that the delivery of goods should be 'F.O.R. certain places' outside the State, then no doubt the delivery of timber to the carrier at Mandla Fort would have amounted to a constructive delivery of goods to the buyer at Mandla, and the actual delivery of timber to the purchaser would have then been at places outside the State and the sale contract would have fallen within the purview of Explanation to Article 286(1)(a) of the Constitution. Then the matter would have been governed by the decision of the Supreme Court in Commissioner of Sales Tax v. Hussenali Adamji & Co. [1959] 10 S.T.C. 297. But as it is in the present case, under the term 'F.O.R., Mandla Fort' the actual delivery of timber to the purchaser was at Mandla. That being so, the assessee cannot invoke the Explanation to Article 286(1)(a) of the Constitution. As the delivery of timber was within the State of Madhya Pradesh and property in the goods passed to the purchaser at that place the tax liability accrued in this State and the State of Madhya Pradesh had the power to levy sales tax on the sale transactions concluded between the parties. That liability is in no way altered or affected by reason of the subsequent despatch of timber from Mandla Fort in accordance with the instructions contained in the Acceptance of Tender Form.
11. Here, reference may be made to the decision of the Allahabad High Court in Capco Limited v. Sales Tax Officer [1960] 11 S.T.C. 34, cited by the learned counsel for the petitioner to support his contention that notwithstanding the term as regards the place of delivery as 'F.O.R. Mandla Fort', timber was actually delivered at places outside the State. That was a case, where a company was assessed to sales tax on its turnover of sales effected to persons in Uttar Pradesh by its head office in Calcutta and branches at Bombay and Madras. The contracts of sale provided for delivery ex godown Calcutta/Madras/Bombay or F.O.R. Calcutta/ Madras/Bombay. The sales were for specific and ascertained goods in a deliverable state and the goods were despatched by the company to the destinations in Uttar Pradesh as desired by the buyers. The sales were on credit basis, payment being made by the buyers against the sales bills and railway receipts either directly or through bank or by V.P.P. In the case of sales F.O.R. Calcutta/Madras/Bombay, the company debited the buyers with the railway freight and in the case of sales 'ex godown', the company debited the buyer with the railway freight and cost of carriage of the goods from the godown to the railway station. It was held by the Allahabad High Court that actual delivery of the goods as a result of the sale took place in Uttar Pradesh within the meaning of Explanation to Article 286(1) of the Constitution and the sales were, therefore, liable to sales tax in Uttar Pradesh. With respects to the learned Judges of the Allahabad High Court, we are unable to agree with the opinion expressed by them that when under the term of delivery of goods 'F.O.R. Calcutta/Madras/Bombay' the goods were delivered to the buyer, there was a constructive delivery and not actual delivery. The learned Judges of the Allahabad High Court relied on the observations of Venkatarama Ayyar, J., in Bengal Immunity Co., Ltd. v. State Bihar [1955] 2 S.C.R. 603, to which we have already referred, on the scope of Section 39(1) of the Sale of Goods Act. As we have endeavoured to point out earlier, Section 39(1) of the Sale of Goods Act has no applicability to a contract which contains the stipulation that the place of delivery of goods shall be ' F.O.R. the place of despatch '.
12. Nothing, however, turns on the petitioner's objection that the contract form which the applicant produced before the taxing authorities did not contain a clause providing that the timber inspected and approved at the despatch station shall be deemed to have been fully delivered to the Director and the timber reinspected at the destination and rejected shall be deemed to have been not delivered. The applicant did not produce before us the original contract of sale concluded between it and the Director. He produced before us a printed copy of Form No. W. S. B. 133, as amended from time to time. This printed form no doubt does not contain any ' Clause 1 l(g) ' referred to in the order passed by the Sales Tax Officer, the Appellate Assistant Commissioner and the Commissioner of Sales Tax. The record does not, however, throw any light whatsoever on the point whether the petitioner produced before taxing the authorities the printed form placed before us or the original contract entered into by it with the Director. Even if it be assumed that the contract, as actually entered into between the parties, did not contain any ' Clause 11(g) ' about the delivery of goods inspected and approved or rejected, that does not alter the conclusion that the legal effect of the term about the place of delivery as ' F.O.R. Mandla Fort ' was that the actual delivery of timber took place at that place. If the contract contained Clause 1 l(g) referred to by the taxing authorities, then that would only further strengthen the conclusion resulting from the specification of the place of delivery as ' F.O. R. Mandla Fort'.
13. Learned counsel for the applicant also made the grievance that the taxing authorities did not at all go into the question whether all timber sold by the petitioner to the Director was delivered under the term ' F.O.R. Mandla Fort '. It was said that in regard to some sales of timber the place of delivery was not ' F.O.R. Mandla Fort ' but places outside the State. In regard to this objection, it is sufficient to say that no such plea was ever taken by the petitioner before the Sales Tax Officer or the Appellate Assistant Commissioner or the Conmissioner of Sales Tax. The applicant cannot, therefore, be allowed to urge that contention for the first time in this Court.
14. The respondents' objection that as the petitioner had the remedy of appealing under Section 38 of the M.P. General Sales Tax Act, 1958, against the decision of the Appellate Assistant Commissioner and bringing the matter ultimately on a reference to this Court under Section 44 of that Act, and that as it had failed to avail itself of that remedy, it was not entitled to invoke the powers of this Court under Article 226 of the Constitution, does not require consideration when no relief is being granted to the applicant in this petition. But it must be mentioned that a similar objection was raised in Calcutta Co. Ltd. v. Commissioner of Sales Tax (M.P. No. 228 of 1963 decided on the 19th December, 1963; since reported at [1964] 15 S.T.C. 554), and was rejected by a Division Bench of this Court by making the following observations-
It is true that the petitioner could have filed an appeal under Section 38 from the Order of the Sales Tax Officer and could have also brought the matter before this Court under Section 44. But the Act itself gives an assessee the right of moving the Commissioner under Section 39 for a revision of an assessment order. When a revision petition is filed by an assessee under Section 39(1) and no Order is made by the Commissioner under Sub-section (2) of Section 39 enhancing or modifying the assessment or cancelling it and directing a fresh assessment, then the assessee has no right of appeal to the Tribunal and consequently there can be no question of a reference to this Court under Section 44. A prudent assessee desiring to contest findings of fact reached by the Sales Tax Officer would no doubt resort to the remedy of an appeal under Section 38. But where the assessee is content with the findings of fact reached by the Sales Tax Officer and wishes to challenge the legality of the assessment order otherwise, he can do so by filing a revision petition under Section 39(1) of the Act. If he does that, he avails himself of the remedy provided by the Act for challenging the assessment.
15. For all these reasons, our conclusion is that there is no ground for the issue of a writ of certiorari for quashing the order passed by the Sales Tax Officer, Jabalpur, on 11th March, 1955, assessing the petitioner-firm to sales tax for the period from 1st January, 1952, to 31st December, 1952, and the decisions of the Appellate Assistant Commissioner and the Commissioner of Sales Tax upholding the order of the Sales Tax Officer. The result is that this petition fails and is dismissed with costs. Counsel's fee is fixed at Rs. 200. The outstanding amount of security deposit, if any after deduction of costs, shall be refunded to the petitioner.