TaxTMI 
TaxTMI 
1970 (9) TMI 96
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....relying on the decision of the Supreme Court in M/s. New India Sugar Mills Ltd. v. Commissioner, Sales Tax, Bihar[1963] 14 S.T.C. 316 (S.C.); A.I.R. 1963 S.C. 1207., upheld the pleas of the respondents and held that such supplies did not constitute sales and were not liable to assessment. After hearing the learned counsel for the parties, we are of the view that these appeals deserve to be allowed. The learned Single judge while deciding the matter in favour of the respondents, relied on the decision of the Supreme Court in M/s. New India Sugar Mills Ltd.'s case(1). The facts as found by the High Court and accepted by their Lordships of the Supreme Court are found at page 1210 of the report and read as under: "The admitted course of dealing between the parties was that the Government of various consuming States used to intimate to the Sugar Controller of India from time to time their requirement of sugar, and similarly the factory owners used to send to the Sugar Controller of India statements of stock of sugar held by them. On a consideration of the requisitions received from the various State Governments and also the statements of stock received from the various factories, ....
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....tion of any directions issued by the Director or the District Magistrate. The application for the grant of a permit for the purchase of bricks has to be made to the District Magistrate in form 'C' appended to the Control Order, as provided by clause 12. Clause 14 prohibits the consumer from varying or altering the contents of the permit under the Control Order. Clauses 15 onwards make provisions for ensuring that a manufacturer or dealer of bricks complies with the provisions contained in the Control Order. Considering the provisions of the Control Order referred to above, it cannot be held that the dealings in question were controlled at every stage leaving no room for consensus. From the perusal of the provisions of the Control Order all that could be gathered is that the Director or the District Magistrate may fix the base price of the bricks and determine buyers. So far as other matters are concerned, the parties are free to decide their own terms by consent. It was not disputed by Mr. Siri Chand Goyal, learned counsel, that the brick-kiln owner was not bound to supply the bricks immediately on the presentation of the permit and that it was open to him to agree with his cust....
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.... to earlier, the Controller allowed the appellant to supply the goods ordered either in the first quarter of the year 1953 or subsequently. In other words, the appellant could supply the goods in question at its convenience. It was open to the appellant to agree with its customers as to the date on which the goods were to be supplied. From the works order dated February 23, 1953, a copy of which was sent to one of the appellant's customers, it is clear that all orders booked were subject to the appellant's terms of business and general understanding in force at the time of booking the orders and despatch of goods. It was also open to the appellant to fix the time and mode of payment of the price of the goods supplied. Therefore it would not be correct to contend that the transactions were completely regulated and controlled by the Controller leaving no room for mutual assent. * * * * It is true that in view of the order, the area within which there can be bargaining between a prospective buyer and an intending seller of steel products, is greatly reduced. Both of them have to conform to the requirements of the order and to comply with the terms and conditions contained in the....
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....nces a statute prescribes the contents of the contract. The Money-lenders Act, 1927, dictates the terms of any loan caught by its provisions. The Carriage of Goods by Sea Act, 1924, contains six pages of rules to be incorporated in every contract for "the carriage of goods by sea from any port in Great Britain or Northern Ireland to any other port"; the Hire-Purchase Act, 1938, inserts into hire-purchase contracts a number of terms which the parties are forbidden to exclude; successive Landlord and Tenant Acts from 1927 to 1954 contain provisions expressed to apply "notwithstanding any agreement to the contrary".' It would be incorrect to contend that because law imposes some restrictions on freedom to contract, there is no contract at all. So long as mutual assent is not completely excluded in any dealing, in law it is a contract. On the facts of this case for the reasons already mentioned, it is not possible to accept the contention of the learned counsel for the appellant that nothing was left to be decided by mutual assent. On the other hand, we agree with the learned Advocate-General of Madras and Mr. Setalvad who appeared for the State of West Bengal, the intervener, that ....