Ramaprasada Rao, J.
1. The petitioner, a company incorporated under the Indian Companies Act, having its registered office in New Delhi, is a registered dealer both under the Madras General Sales Tax Act, 1939, and the Central Sales Tax Act, 1956. During the year 1961-62, the petitioner had branches at Calcutta and at Dalmiapuram, and in that assessment year its registered office was in Madras. Even in Calcutta the company was registered as a dealer in that State both under the local Sales Tax Act and the Central Sales Tax Act. For the year 1961-62 and for the following years, assessments were completed in so far as the company's dealings as a dealer were concerned. By a notice dated 21st January, 1967, the Deputy Commercial Tax Officer, Lalgudi, the first respondent, issued a notice purporting to be under the Central Sales Tax Act, 1956, claiming that for the assessment year 1961-62 there has been an escapement of assessment in so far as sales in the course of inter-State trade and commerce of the company was concerned and proposed to determine such escaped turnover under inter-State sales which, according to the first respondent, amounted to Rs. 30,00,000 and proposed that a 10 per cent, levy of tax is exigible in relation to such escapement under Section 8(2) of the Central Sales Tax Act, 1956, as no declaration in Form 'C was filed before him. The petitioner objected to such reopening both factually and legally. Overruling the objection the impugned order of assessment was made. The petitioner's contention was that the alleged escapement related to intra-State sales of cement in Calcutta and the same was assessed and brought to tax under the West Bengal Sales Tax Act. The petitioner states that during the relevant period the Cement Control Order, 1958, was in force, which legally obliged the State Trading Corporation of India Limited to acquire the entire production of cement at the various factories in India including the Dalmiapuram factory of Dalmia Cement (Bharat) Limited. Under the Cement Control Order, the State Trading Corporation of India Limited was to pay Dalmias the rate fixed from time to time by the Central Government towards the cost of such cement acquired. The petitioner was constituted the agent of the State Trading Corporation of India Limited and it was ordained to take charge of the cement manufactured at the Dalmiapuram factory referred to above and was to dispose of the same in accordance with the directions of the State Trading Corporation of India Limited. The petitioner's case is that it was at all material times in custody of such cement as agent of the State Trading Corporation of India Limited and that the property in such cement always vested in the latter. The procedure adopted for the despatch of such cement, of which custody the petitioner secured in the manner stated above, was as follows. The State Trading Corporation of India Limited used to issue authorisations from time to time to the petitioner as well as to the consumer enabling him to acquire from the petitioner or other agents of the State Trading Corporation of India Limited such cement as may be allotted to the customer concerned. It also transpired that apart from the sales within the Madras State, the State Trading Corporation of India Limited, the head office of which is situate in New Delhi, issued instructions from time to time to the petitioner at Dalmiapuram to send large quantities of cement to Calcutta as by then there was paucity of stock at Calcutta. Such instructions are in writing, and by way of illustration they may be extracted to appreciate the facts in the case. One such authorisation issued by the State Trading Corporation of India Limited to the petitioner is on 22nd November, 1961, which reads as follows:
AuthorisationThe State Trading Corporation of India Ltd.Office of the Regional Cement Officer,119/120, Armenian Street, Madras-1.Dated 22nd November, 1961.West BengalState QuotaAuthorisation No. RCO/DI/AU-WBST/818.Name of suppliers: The Cement Distributors (P.) Ltd., Dalmiapuram P.O.,Tiruchirapalli District, Madras State.You are authorised to sell the quantity of cement mentioned below,under this authorisation. The sale will be a direct deal between yourselfand the purchaser.------------------------------------------------------------------------------------Name and address of Name of the Quantity Name of Railwaythe person in Cement Station to Remarkswhose favour Factory which cement isauthorisation required to to be bookedis issued supply cement1 2 3 4 5------------------------------------------------------------------------------------The Cement Distri- Allotment for the periodbutors (P.) Ltd., IV/1961'Stephen House', Dalmiapuram ---------------------------------Mission Road, Factory 9,000 Metric tonnes (NineCalcutta. thousand tonnes only)for distribution to Calcutta area as direct-ed by the Regional Cement Officer, S.T.C.,Calcutta.------------------------------------------------------------------------------------Full details of the purpose for which and the For consumption in place at which cement will actually be consumed. Calcutta area. Reference :-i. Ministry of C. & J., New Delhi, No. Cem-10(10)/61 dt. 26-9-1961.ii.iii.For The State Trading Corporation of India Ltd.Sd/-Regional Cement Officer.Copy to:-1. The person named in Col. 1. (By Registered Post)* * * *
The authorisation enables the petitioner to sell the quantity of cement mentioned therein to the person in whose favour the authorisation is issued. It is said that such a sale will be deemed to be a direct sale between the petitioner and the purchaser. It is however significant that the name of the purchaser is not to be found in this authorisation. On the other hand, the person in whose favour the authorisation is issued is none else than the branch office of the petitioner. Before issuing this authorisation order or at or about that time, the State Trading Corporation of India Limited issued another authorisation enabling the actual consumer or purchaser to secure such quantity of cement allotted to him by them. One such authorisation or allotment letter is dated 4th November, 1961. This authorisation form is addressed to the branch office of the petitioner at Calcutta and they are authorised to sell the quantity of cement mentioned in the allotment letter to the person in whose favour the authorisation is issued. In the illustration cited, the person so authorised was the Executive Engineer, Howrah Division Construction Board, 94, Chittaranjan Avenue, Calcutta. A quantity of 230 metric tonnes was allotted to the Executive Engineer. The authorisation or allotment letter should also be extracted for purposes of easy appreciation. It runs thus:
'Authorisation FormThe State Trading Corporation of India Ltd.Office of the Regional Cement Officer,Calcutta-21.Ranji Stadium, Eden Gardens.Dated : November 4, 1961.State Quota. West BengalAuthorisation No. STC/R/CO/CAL/61/IV/WB-G/31.Period IV/61.Name of suppliers: M/s. Cement Distributors Private Limited,Stephen House, Mission Row, Calcutta-1.You are authorised to sell the quantity of cement mentioned below under this authorisation. The sale will be a direct deal between yourself and the purchaser.--------------------------------------------------------------------------------------Name and address of Name of the Quantity Name of Railwaythe person in Cement Metric Station to Remarkswhose favour Factory Tonnes which cementauthorisation to supply is to be bookedis issued cement1 2 3 4 5--------------------------------------------------------------------------------------Executive Engineer, Delivery ex-Calcutta Price rulingHowrah Division Jetty/Docks on the dateConstruction Board, Dalmiapuram 230 M/T. of despatch94, Chittaranjan from theAvenue, Calcutta. Factory(Two hundred and thirty M/Tonnes only)--------------------------------------------------------------------------------------Full details of the purpose for which and the place at which cement will actually be consumed. Reference : Letter No. 941/D dt. 19-9-61, From Resources Officer, Govt.of W. Bengal, Dev. Rds. Deptt., Calcutta-1.For The State Trading Corporation of India Ltd.Sd/- (A.C. Banerjee)Regional Cement Officer.Copy to:-The person in Col. 1. (By Registered Post)* * * *
2. It is seen in this, letter of allotment that a similar form as that utilised by the State Trading Corporation of India Limited while directing a transfer of cement from Madras office to the Calcutta office of the petitioner has been used in the case of the allotment letter authorising the Executive Engineer to secure the supplies needed by him. Here also, the expression used is that the sale will be a direct deal between the branch office of the petitioner-company at Calcutta and the purchaser. One significant recital in this letter of authorisation or allotment is that the delivery of such cement is to be ex-Calcutta Jetty/Docks. The common feature in both the authorisations referred to is that it related to the allotment period IV/61. Thus, 9,000 tonnes were to be sent by the petitioner to its branch office at Calcutta as per the first authorisation cited above and the branch office at Calcutta which is apparently expected to take delivery of the same, is to ascertain and apportion the quantities of cement required by the respective purchasers and as allotted to them by the State Trading Corporation of India Limited in the manner narrated above, and deliver such apportioned goods at the Calcutta Jetty/ Docks to the named purchaser.
3. It happened in this case that during the year 1960-61 similar instructions for transfer had been given, out of which the transfer of 6,000 metric tonnes was outstanding and during 1961-62 two authorisations for the despatch of 18,000 metric tonnes to the branch office of the petitioner was issued. The shipments in this regard were made by the petitioner from the Port at Cuddalore to Calcutta in the name of its branch. The particulars of shipment are as follows:-
'Date of Quantity Date of Name of ship.Shipment. shipped. arrival.25- 4-61 6,000.000 M.T. 1-5-61 Jag Rani19-12-61 3,841.000 M.T. 23-12-61 Jag Doot14- 1-62 3,172.500 M.T. 18- 1-62 Bharat Veer22- 1-62 1,800.000 M.T. 27- 1-62 Jag Rani17- 2-62 4,400.000 M.T. 22- 2-62 Jag Mata18- 3-62 4,677.500 M.T. 23- 3-62 Jag Tara------------------ Total 23,891.000 M.T.------------------
4. The petitioner's branch at Calcutta appointed their clearing agents to clear the goods and apparently issued in turn letters of authorisation (chalans) to their shipping agents to deliver at the Jetty to the respective allottees such quantities of cement fixed by the State Trading Corporation of India Limited under the letters of allotment issued to such purchasers in the manner described above. The procedure followed by the Calcutta office which is based upon the authorisations and the allotment as above may also be noticed.
5. The branch office of the petitioner-company at Calcutta quoted the terms and conditions under which they could effect the supply which was to come from Dalmjapuram by ship. They stipulated a price and an additional charge of rupee one per metric tonne for loading the cement in the trucks of the buyer at the Docks/Jetty. The quality and the quantity of cement should be checked up by the representative of the buyer before the consignment is taken custody of at the Docks/Jetty. The date of arrival of the steamer would be notified to the buyer and the exact date and locality from where the buyer could take delivery of the cement should be ascertained. The buyer (in the instant case the Executive Engineer) accepted the terms and conditions and ultimately secured the goods after inspection and after it was separated from the bulk and under chalan evidencing such delivery. The petitioner's branch at Calcutta thereafter made out an invoice and collected the price from the purchaser. It is reported that there is no sales tax charged on sales of cement under the West Bengal Sales Tax Act. It is not in dispute that at no time the petitioner-company despatched the allotted quantity of cement to the respective allottees in Calcutta by rail. In so far as the transactions in question are concerned, they were all the subject-matter of bulk shipments from Cuddalore Port to Calcutta Port and the goods allotted to the ultimate buyer, whoever it may be, was ascertained and separated from the bulk so shipped and after such ascertainment the goods were delivered to the buyer at Calcutta at Jetty or Docks as the case may be.
6. In the light of such facts as disclosed before us, though not before the assessing authority, it is necessary to find what really the parties said, wrote and did. As almost all contracts are executory in scope, the terms thereof can be discovered only in relation to the manifest intention of the parties connected with the contract. No doubt if correspondence led to a contract, a delve into the same is obviously necessitated to find out the common intention of the parties and the nature and content of the legal obligations undertaken or communicated as between them expressly or by necessary implication. Ordinarily a contract emanates from a volition between two parties called the seller and buyer. There may however be cases where the relationship of seller and buyer is involuntarily thrust upon two parties by any act or deed of a third party. Nevertheless it shall not cease to be sale as it is popularly understood. In a contract for sale of goods, a distinction is always maintained between a contract in which specific or ascertained goods are sold and a contract under which unascertained goods are sold. The Indian Sale of Goods Act has laid down certain rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. As we are here considering fiscal enactments, which as a rule, have to be interpreted strictly, much of guidance cannot be sought from the common law, when there are specific provisions governing the same in the taxing statutes. One unexceptional principle which however emanates from both the common law and the special enactment is that where the contract is for sale of unascertained goods, then until the goods are appropriated to the contract, there is no completed sale. To quote Blackburn on Sale, Third Edition, page 137:
It follows from this, that where from the terms of an executory agreement to sell unspecified goods, the vendor is to despatch the goods, or to do anything to them that cannot be done until the goods are appropriated, he has right to choose what the goods shall be...
7. Such a well understood concept in the ' Law of Sale of Goods' has been extended even to inter-State sales under the Central Sales Tax Act, 1956, though for certain specific purposes. Section 3(a) reads:
A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase occasions the movement of goods from one State to another.
8. Thus notwithstanding the movement factor under a contract being decisive as an inter-State sale, yet Section 4(2) makes an inroad into it as it were to fix the situs of sale in certain cases and imprints it with the character of an out-of-State sale. Section 4 reads :
(1) Subject to the provisions contained in Section 3, when a sale or purchase of goods is determined in accordance with Sub-section (2) to take place inside a State, such sale or purchase shall be deemed to have taken place outside all other States.
(2) A sale or purchase of goods shall be deemed to take place inside a State if the goods are within the State-
(a) in the case of specific or ascertained goods, at the time the contract of sale is made; and
(b) in the case of unascertained or future goods, at the time of their appropriation to the contract of sale by the seller or by the buyer, whether assent of the other party is prior or subsequent to such appropriation.
9. To a great extent, the sale of unascertained goods, in the case of inter-State sales involving inter-State movement, has been placed in part materia for certain purposes with a sale of such unspecified goods under the appropriate provision of the Sale of Goods Act. Whereas Section 3 of the Central Sales Tax Act makes a sale of ascertained goods exigible to tax by the despatching State by reason of the movement of the goods having been occasioned under the contract, in the case of unascertained goods the despatching State has no jurisdiction to treat it and tax it as an inter-State sale merely because a movement is involved. In the latter case the situs of sale is determined on the basis of the appropriation of the goods by an overt act on the part of the seller, with or without the the assent of the buyer. Thus if the goods are unascertained, then until it is appropriated to the contract by a known process, sale is not complete. Central sales tax is not leviable by the despatching State in such cases, notwithstanding inter-State movement of the goods, as they are considered in Section 4 as 'out-of-State' sales.
10. It is therefore rightly contended by Mr. V.K. Thiruvenkatachariar that as the Parliament has defined the content of an out-of-State sale, then the Madras State has no power in the instant case to impose or authorise the imposition of Central sales tax on the transactions in question, as the sales are demonstrably out-of-State sales in so far as the State of Madras is concerned and an inside sale in so far as the State of West Bengal is concerned. No doubt, the goods moved in bulk pursuant to an authorisation from the State Trading Corporation of India Limited addressed to the petitioner. This is for consumption in Calcutta during a specified period. But the fact remains that the purchaser or allottee is unable to identify his goods straightaway until it is separated and delivered to him by the clearing agent under express authority from the petitioner's branch office at Calcutta. The delivery chalans noted above by us provide the key to the scheme of operation resulting in the ascertainment of the goods deliverable to the purchaser-allottee at Calcutta. That inter-State movement springs from a contract of sale, is a proposition of general acceptance. When, therefore, Parliament in exercise of its authority under Article 286(2) read with Clause (1)(a) of that article laid down the principle when a sale takes place outside a State, as is contained in Section 4(1) of the Central Sales Tax Act, 1956, and when it defined in Section 4(2) the circumstances when a sale shall be deemed to take place inside a State, 'there is no warrant' as the Supreme Court observed in Tata Iron and Steel Company, Limited v. S.R. Sarkar [1960] 11 S.T.C. 655, 'for the view that Sub-section (2) of Section 4 only seeks to locate the place of sales which are not in the course of inter-State trade or commerce.' Indeed the Supreme Court in that case rejected the argument that certain difficulties may be posed in the case of unascertained or future goods. At page 672 the learned Judges observed ;
The argument that by the application of Section 4, Sub-section (2), in cases where the goods sold are unascertained or future goods, there will be difficulty in ascertaining the place where the sale is effected, has also no force. In any event, Section 4(2) may not be denied its full operation, merely because difficulty may be encountered in some cases in ascertaining the place where it is effected by the application of the rules set out therein.
11. The following excerpts from Larsen and Toubro Limited v. Joint Commercial Tax Officer [1967] 20 S.T.C. 150 to which my very learned brother Veeraswami, J., was a party, are apposite to the discussion :.no concept of inter-State trade can be comprehensive without knowing what is an outside sale and, therefore, an inside sale. An inside sale or an outside sale is related to its situs and if the situs of an inside sale is fixed on certain tests, what is not an inside sale will be an outside sale provided there is a completed contract of sale of goods. Section 4(2) defines an inside sale in terms of certain tests for its situs. A sale or purchase of goods is deemed to take place inside a State in the case of specific or ascertained goods at the time the contract of sale is made; and in the case of unascertained or future goods at the time of their appropriation to the contract of sale by the seller or the buyer whether assent of the other party is prior or subsequent to such appropriation. An explanation to Sub-section (2) says where there is a single contract of sale or purchase of goods situate at more places than one, the provisions of the sub-section shall apply as if there were separate contracts in respect of the goods at each of such places. The place where the goods are at the time when the contract of sale is made in the case of ascertained goods or when appropriation is made in the case of unascertained goods determines both the situs of such a sale as well as its character as an inside sale. Once a sale is fixed as having taken place inside a State, with reference to such tests, it should be deemed to have taken place outside all other States. While providing for this, Sub-section (1) of Section 4 makes it subject to the provisions contained in Section 3. The opening words of Sub-section (1) of Section 4 in effect mean that Section 3 controls the scope of sale or purchase inside a State which is necessarily a sale or purchase outside all other States. In our opinion, having regard to the definitions of 'appropriate State' and 'place of business' and the language employed by Sections 3 and 4, a sale or purchase inside a State as denned by Section 4(2) is the starting point and out of such sale or purchase is carved out and separated, a sale or purchase which occasions the movement of goods from one State to another or is effected by transfer of documents of title to the goods during their movement from one State to another and by this process such an inter-State sale or purchase is distinguished and excluded from an outside sale or purchase. At the same time, an inter-State sale or purchase while separated from an inside sale is also integrated with it for purposes of its situs and fiscal and territorial jurisdiction to tax it.
12. Thus therefore though Section 3 has an independent and self-operating effect, yet in the case of sale of goods which are unascertained, and which move from one State to another, it has to be adjudged not only from the point of view of physical inter-State movement of the same but also from the judicial perspective as to which is the situs for jurisdiction to tax it. The indicia in Section 3 of the Act are decisive of the character of the transaction and no more ; but Section 4 is a guide to fix the situs for jurisdiction to make such sales exigible to tax. As pointed out by the learned Judges in Larsen and Toubro Limited v. Joint Commercial Tax Officer [1967] 20 S.T.C. 150:
Once the tests under Section 4(2) are answered in favour of a State, that becomes the appropriate State having jurisdiction to tax the sale or purchase and no other State will have the power to tax the same transaction.
13. Learned counsel for the State, however, relied upon two decisions of the Supreme Court in support of his contention that the sales in question are exigible to tax as inter-State sales. He referred to The Cement Marketing Company of India (Private) Limited v. The State of Mysore [1963] 14 S.T.C. 175 and The State Trading Corporation of India Limited v. The State of Mysore : No. 2 [1963] 14 S.T.C. 416. There the Supreme Court was not concerned with the sale of unascertained goods. It was a clear case where both the identity of the buyer and the goods were available. The goods were sent by rail and the consignment so sent was intended to the allottee. There was no question of any appropriation of the goods to the contract of sale by the seller or by the buyer. In those circumstances, the sales were held to be inter-State sales. The principles, no doubt, in the above two cases are unexceptional; but we are unable to agree with the learned counsel for the revenue that the two decisions cited by him are of any assistance in this case as it is a primordial necessity in the instant case to apply Section 4(2) of the Act to find out the situs for jurisdiction to tax which was conspicuously unnecessary for the Supreme Court to consider in the cited authorities.
14. We therefore accede to the contention of Sri V.K. Thiruvenkatachariar that the sales in question cannot be brought into the net of taxation by the State of Madras as the situs for such jurisdiction has been shifted by reason of the sale being an out-of-State sale in relation to the State of Madras.
15. Sri V.K. Thiruvenkatachariar also rested his contention on one of the recitals in the prescribed 'C Form which is to the effect that the bill or cash memo, from the seller is one amongst many particulars which the purchasing dealer should provide to the registering authority for the completion of Form 'C prescribed under the Act enabling the seller to get a concessional rate of tax. He would urge that as it is not possible for the purchaser-allottee in this case to provide a bill or cash memo, as prescribed, this is yet another circumstance which would take the sale out of the purview of inter-State sale. The argument is, no doubt, attractive. We are not inclined to accept the same as it is purely ancillary. We may add that the mere prescription of a detail in a form attached to a statute, which form is by itself intended to give a benefit to the persons involved in the transaction, cannot defeat the real purpose and intendment of the Act if otherwise the sale is exigible to tax under the express provisions of the statute. In the view that we have taken on the main contentions of parties, the question however is left open and it is not necessary for us to pronounce an opinion thereto.
16. The petitioner should succeed on yet another ground. The petitioner's case is that the impugned order has not been passed within the prescribed period of five years as provided for by Section 16(1) of the Madras General Sales Tax Act which is attracted in this case by reason of Rule 5(7) of the Central Sales Tax (Madras) Rules, 1957, and Section 9(3) of Act 74 of 1956. No doubt, the vires of Rule 5(7) of the Central Sales Tax (Madras) Rules was raised, but it was not pursued. The argument, however, ultimately rested on facts. The contention was that, conceding that the authority had the power to revise the assessment within a period of five years, such period having expired on 31st March, 1967, and no assessment in fact having been made by then, the present order which according to the petitioner was passed on 5th April, 1967, is without jurisdiction and is unenforceable. He has invited our attention to the order served on the petitioner by the authority. It is very unfortunate for us to comment that in this case there is considerable doubt on the face of the order whether it was signed on 31st March, 1967, at all. We find distinctly that the final order was signed by the Deputy Commercial Tax Officer, Lalgudi, on 5th April, 1967. Surprisingly enough, however, when the notice of final assessment and demand under Rule 5(6) of the Central Sales Tax (Madras) Rules, 1957, was issued to the petitioner, the Deputy Commercial Tax Officer has strained himself to date the order as 31st March, 1967. A casual perusal of the notice issued in Form 3 as above discloses that a correction has been made by the Deputy Commercial Tax Officer, Lalgudi, as regards the date on which he purported to sign the notice. It is clear from a photostat copy of the order produced before us that it bears originally the date 5th April, 1967. There has been a distinct correction and overwriting over this date and it has been corrected to 31st March, 1967. We have seen the original records also which were produced on the issue of a rule nisi. We are thoroughly satisfied that the order was passed on 5th April, 1967, and not on 31st. March, 1967.
17. We should, however, deprecate such over-anxiety on the part of assessing authorities to make material alterations in orders so that they could rectify errors apparent on its record. By such an open correction, the assessing authorities who are exercising jurisdiction under a statute are exposing themselves to open criticism by higher authorities, besides such an act being calculated to advance an illegality and to suppress mischief.
18. Learned counsel for the revenue is unable to persuade us to come to a conclusion that the order has not been made on 5th April, 1967. If, therefore, the order has been so made, it is beyond the prescribed period of time and therefore unenforceable in the eye of law. On this ground also the petitioner should succeed.
19. The rule nisi is made absolute and the order impugned is struck down as one having been passed without jurisdiction, besides being illegal. This writ petition is allowed with costs. Counsel's fee Rs. 100.