MOHAN DAL MILLS Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India and is directed against the order of the Deputy Excise and Taxation Commissioner (Appeals), Ambala City, whereby the sale of moong dal amounting to Rs. 2,92,000 was assessed to sales tax at the rate of 5 naye paise under the second proviso to Section 5 (2) (a) (ii) of the Punjab General Sales Tax Act, 1948. The sale in question was before the amendment of the form of the registration certificate.

(2.) THE petitioner is a manufacturer of moong dal. On the strength of their registration certificate they purchased moong and then converted it into dal for purposes of sale. The petitioner sent the dal to Delhi and sold it through a commission agent. The Assessing Authority came to the conclusion that the transaction whereby the goods were despatched on consignment basis, did not constitute a sale as there was no transfer of property in the goods. On this basis it was concluded that the transfer of goods has not been in accordance with the registration certificate. For this reason the purchase of moong amounting to Rs. 2,92,000 was brought to tax as already stated. It may be mentioned that the authorities proceeded to take this view on the basis of the decision of Shamsher Bahadur, J. , in Amur Hosiery Works (Regd.) v. The State of Punjab Civil Writ No. 157. 9 of 1962 decided on 8th March; 1963. The view the learned Judge took was not shared by Harbans Singh, J. (as he then was) for in Amar Hosiery Works v. The State of Punjab [1963] 14 S. T. C. 634, the learned Judge took a diametrically opposite view. It may be mentioned that the case which came before Harbans Singh, J. , was also of the same firm, namely, Amar Hosiery Works (Regd.), Ludhiana. The view which Harbans Singh, J. , took was also shared by me in Tulsi Ram Sud v. The Excise and Taxation Commissioner, Punjab [1963] 14 S. T. C. 526. It is significant that the judgment of Shamsher Bahadur, J. , was not brought to my notice or to the notice of Harbans Singh, J. (as he then was ). As there was a conflict of opinion on this matter, this petition was admitted forthwith to a Division Bench.

(3.) WE have gone through the judgment of Shamsher Bahadur, J. , and also the judgments which took the opposite view and, in our opinion, the view taken in the other two decisions is the correct view. It is not necessary to restate the reasons because they are amply given in both these decisions. Mr. Dewan realised the force of this contention and urged a totally different argument.