Public Prosecutor vs E.P. Varkey and Others

Somasundaram, J.—These are a batch of appeals filed by the State against the acquittal of the respondent in each case by the Sessions

Judge of South Malabar. All these cases relate to offences under the Sales-tax Act and all the respondents reside out of the State of Madras. The

case for the prosecution is that the respondents were doing business and effecting sales of their respective goods in Fort Cochin which is within the

State of Madras and therefore they are liable to pay sales-tax to the Madras State.

Evidence was let in to show that the goods were delivered in Fort Cochin and the buyers paid the prices for the same in Fort Cochin. The learned

Sessions Judge finds this in para 5 of his judgment in C. A. No. 490 of 1953. He also finds that this finding, viz., that the delivery of the goods was

made in Fort Cochin and that the price was paid in Fort Cochin has not been challenged. But he proceeds further to find out where the contract of

sale was entered into, whether it was within the Madras State or outside Madras State.

It is true that no evidence was let in as to where exactly the contract was entered into. To give the assessee the benefit of the decision of this court

in -- Poppatlal Shah, Partner of Indo-Malayan Trading Company Vs. State of Madras, the learned Sessions Judge finding that there is no evidence

as to where the contract was entered into, proceeds on the footing and in fact presuming, that the agreements of sale were not entered into in Fort

Cochin, within the Madras State.

In the absence of any evidence as to the place where the contract was entered into and in the face of the positive evidence let in by the prosecution

that these goods were delivered at Fort Cochin and the prices for these goods were paid at Fort Cochin, one would have thought that there was

no need to enter on this speculation as to where the contract of sale took place,, because undoubtedly the sales have been effected in terms of the

definition of the term ""sale"" in the Sale of Goods Act as well as within the meaning of the Sales-tax Act in Fort Cochin itself.

For some, reason, not clear from the record, the learned Sessions Judge having been informed of the decision in Poppatlal Shah, Partner of Indo-

Malayan Trading Company Vs. State of Madras, , referred to above, embarked upon an enquiry as to the place of contract of sale. Since there

was no evidence that the contracts of sale were entered into in Fort Cochin, following the decision referred to above, he held that in the absence of

the proof of contract of sale at Fort Cochin, the assessces cannot be held liable to pay sales-tax.

This decision in Poppatlal Shah, Partner of Indo-Malayan Trading Company Vs. State of Madras, , went up to the Supreme Court and their

Lordships have held, disagreeing with the decision of this Court, that the sales must be considered to have been effected at the place where the

properly in the goods passed and not merely at the place where the contract of sale is entered into. Poppatlal Shah Vs. The State of Madras, . In

short, the decision of the Supreme Court is that the State within which the property in the goods has passed to the buyer has the right to levy tax

and not the State where the contract of sale has been merely entered into.

As already stated, in these eases there is no evidence as to where the contracts of sale were entered into. We have only the positive evidence that

the goods were delivered at Fort Cochin and the price was paid at Fort Cochin. There can he no doubt that the properly in the goods had passed

at Fort Cochin and the sales were effected at Fort Cochin. The respondents are therefore liable to pay the assessments levied on them.

If really the respondents, wanted to establish the case that the sales did not take place within Fort Cochin and that not only the contracts of sale

were entered into outside Fort Cochin but that as a matter of fact the property in the goods had passed to the buyer outside Fort Cochin, then the

onus lies on them to prove it They have not discharged that onus in these cases. It is not disputed that in all these cases the goods were delivered at

Fort Cochin and were paid for there.

The prosecution therefore has proved its case and the guilt of the accused in each of these cases has been established beyond all reasonable doubt.

The appeals are allowed and the convictions given by the first Court are restored- But with regard to the sentence, the tax leviable from each of

these respondents is confirmed and the fine which is imposed is reduced to Rs. 100 in each case that is to say, in C. A. No. 490 of 1953 it is

reduced from Rs. 600 to Rs. 100, in C. A. No. 491 of 1953 it is reduced from Rs. 1000 to Rs. 100, in C. A. No. 492 of 1953 it is reduced from

Rs. 200 to Rs. 100, in C. A. No. 493 of 1953 the fine being only Rs. 100 it is confirmed, in C. A. No. 494 of 1953 it is reduced from Rs. 200 to

Rs. 100, in C. A. No. 495 of 1953 it is reduced from Rs. 600 to Rs. 100, in C, A. No. 496 of 1953 it is reduced from Rs. 300 to Rs. 100 and in

C. A. No. 497 of 1953 it is reduced from Rs. 200 to Rs. 100.

The excess fine wherever it has been paid will be refunded to the respective accused. But the tax which has been ordered to be paid by the first

Court will remain in all these cases. Two months'' time is granted for payment of the tax and the fine.