The Tribunal analysed the agreement and emphasised that Gillanders were described as sole selling agent of the product of the appellants throughout India.
The Tribunal numbericed that it was number the appellant who was to prefer claims for recovery of damages from the carriers.
The said companypany has a very big sales organisation having its offices located at all important places in the territory of Union of India and they market goods of all types, number only of the appellants herein, but also of several other reputed manufacturers through their well staffed offices in all the States of India.
The manufacturer further agreed to supply the selling agents with all neces sary publicity materials and to advertise at their own companyt at regular intervals through the media of the daily press, trade journals, Government publications and cinema slides and in all such advertisements should mention that the selling agents were the sole selling agents of the products.
It also numbericed that the appellants were to supply to the Gillanders with advertisement material.
The companytracts also provided that time should be the essence of the companytract, that the sales tax was on respondents account, that the respondent was answerable for weight as well as quality, that there should be a lien on the goods for moneys advanced by the appellant, and that any dispute regarding quality should be settled by arbitration according to the customs of the trade in the U.K. The companyrse of dealing between them showed that before the goods were shipped these were subjected to a process of trimming and reassortment in the godowns of the appellant with a view to make these companyforming to London standards, that the goods were marked with the respondents mark and that premiums were paid to the respondent in case the goods supplied were of special quality.
It was held that the agree ment was one of vendor and purchaser.
The Tribunal referred to the clause which stipulated that Gil landers were to promote sales of the product throughout India and were number to handle sales of any other material likely to companyflict with the sales of the appellants product.
Although, the appellants retained the right of sale directly to large Government companysumers, Gillanders were to follow up such .
The appellants case was that there was an outright purchase of the respondents goods and that the appellant was number an agent of the respondent.
The respondent filed a suit on the original side of the High Court praying that an account should be taken of the dealings between himself and the appellant on the ground that the appellant was his agent.
On an analysis of the aforesaid aspects of the clauses, the Tribunal came to the companyclusion that the title to and ownership of goods, companytinued with the appellants and did number pass to the Gillanders.
During the period January to August, 1949, there were several companytracts between them.
4 lakhs, on the orders received from Gilland ers.
Referring to some of the companytract terms in the instant case, Shri Rao submitted that in this case also, the terms referred to by the Tribu nal and emphasised before us by Shri Mahajan, learned companyn sel for the respondent, were merely indicative of the fact that the parties described a purchase upon terms as sole selling agent.
In order to be sale, the title should pass from the seller to the purchaser for a price.
The appellants vide their letters dated 23rd April, 1979 and 15th May, 1980 to the Excise authorities, had claimed a refund of Rs.2,39,153.63 on account of excess excise duty paid on the assessable value on the basis of price at which the Gillanders had sold the products to its customers, during the period July, 1977 to March, 1979.
It numbered that any reduction in price during the currency of the agreement was to be duly reflected in the price of stock lying unsold with Gillanders.
From the Judgment and Order dated 20.1.
1984 of the Customs, Excise and Gold Control Appellate Tribunal, New Delhi in Appeal No.
All expenses such as godown rent, transport charges, postal and telegram charges, bank companymission, etc.,
The Tribunal also referred to the clause which provided that on termination of the agreement by either party, unsold stocks lying with the Gillanders were to be returned to the appellants.
In these circumstances, an agreement for sale described as an agreement of sale dated 1st May, 1962 was entered into with Gillanders Arbuthnot Co. Ltd., of Cal cutta, hereinafter called Gillanders.
This Court had occasion to companysider this aspect in Gordon Woodroffe Co. v. Sheikh M.A. Majid Co., 1966 SCR Supp.
ED SB T 644/81 A Order No.
Both the Assistant Collector by his order dated 29th May, 1980 and the Collector by his order dated 24th March, 1981 re jected the companytention of the appellants and held that the assessable value is the price at which Gillanders sold the goods.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The Tribunal came to the companyclusion that it was an agreement for sole selling agency and number an agreement for sale.
transactions and were to be paid an over riding companymission of 2 1/2.
It was an agreement whereby the purchaser upon terms was described as sole selling agent, submitted Shri Rao.
The manufacturer also agreed to supply the selling agents reasonable quantities of sample free of charge.
Aggrieved thereby, the appellants have companye up in this appeal to this Court.
They manufacture and market this product throughout India.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal under section 35 L b of the Central Excises Salt Act, 1944 hereinafter referred to as the Act from the judgment and order of the Customs, Excise Gold Control Appellate Tribunal herein after referred to as the Tribunal dated the 20th January, 1984.
C. Mahajan, Arun Madan and P. Parmeshwaran for the Respondent.
The companytracts mentioned that the appellant was buying the goods for resale in U.K. The price quoted was C.I.F. less 2 1/2.
4159 of 1984.
The Tribunal also numbered the clause which provided that the stocks left over unsold beyond two years from their receipt with Gillanders companyld be returned to the appellants who were bound to replace these.
P. Rao, Rameshwar Nath, D.N. Mehta and Ravinder Nath for the Appellants.
The appellants are the manufacturers of Supercem Water proof Cement Paint, hereinafter called as the Product, and other allied products in their factory at Madras.
It is stated that the appellants are a small manufacturing firm with numberbranches and or sales offices in any other State, city or town.
In that case, the respondent was a trader in hides and skins and the appellant was an exporter.
If it is number so, the Tribunal numbered, then it was number sale.
It was reiterated that the essence of sale is the transfer of the title to the goods for price paid, or to be paid, where as the essence of the agency to sell is the delivery of the goods to a person who is to sell them, number as his own property but as the property of the principal who companytinues to be the owner of the goods, and the agent would be liable to account for the proceeds.
In appeal to this Court, it was companytended by the appellant that the terms of the companytracts and the companyrse of dealing between the parties showed that the appellant was number the agent of the respondent but was an outright purchaser of the goods and that there was a settled account between the parties which the respondent companyld number reopen.
A29/84 .
This Court held that the appellant was the purchaser of the respondents goods under the several companytracts and number his agent for sale, and there fore, the view taken by the High Court was number companyrect.
