ORDER This order will also dispose of Miscellaneous Civil Case No. 105 of 1952. 2. The assessee is a manufacturer of bidis, having his principal place of business at Kamptee in the Nagpur District. Being aggrieved by the order of the Board of Revenue passed on the 14th December, 1951, he applied to the Board under section 23(1) of the Central Provinces and Berar Sales Tax Act to refer to this Court for decision the several question of law arising out of that order. The Board of Revenue referred only one question of law relating to the inclusion of packing charges and dharmada in the sale price. That reference is Miscellaneous Civil Case No. 105 of 1952. 3. Being aggrieved by the order refusing to state the remaining questions of law, the assessee made an application to this Court under section 23(2) of the Act. That was Nemkumar v. Board of Revenue ([1953] 4 S.T.C. 327; I.L.R. 1953 Nag. 992). It was heard along with Miscellaneous Civil Case No. 105 of 1952. By an order dated the 17th April, 1953, the Board of Revenue wa asked to state sufficient facts to enable this Court to decide the question of law referred to this Court. This Court set aside the order of the Board refusing to state case and required it to state it and refer all questions of law arising out of its order dated the 14th December, 1951. Such questions of law were also indicated. 4. In compliance with the order of this Court, the Board of Revenue has stated the case and referred for decision all the questions of law arising out of its order dated the 14th December, 1951. This statement of the case covers the questions of law raised in Miscellaneous Civil Case No. 105 of 1952. 5. 4. In compliance with the order of this Court, the Board of Revenue has stated the case and referred for decision all the questions of law arising out of its order dated the 14th December, 1951. This statement of the case covers the questions of law raised in Miscellaneous Civil Case No. 105 of 1952. 5. The questions of law referred to this Court are :- "(1) Whether despatches of goods after the Act came into force against orders received prior to Act are in law sales within section 2(g) of the Act; (2) Whether on the facts and circumstances of the case, the goods despatched outside the State can in law be regarded as sales within section 2(g) of the Act read with Explanation II; (3) Whether these provisions are ultra vires the State Legislature; (4) Whether (a) the packing expenses and (b) dharmada charges in this case could be held to form part of "sale price" as defined in section 2(g) of the Act, and be included in the taxable turnover; (5)(a) Whether assessment of sales tax violates the provisions of Article 286 of the Constitution of India; (b) Whether the proviso to section 22(1) of the Act is ultra vires of the State Legislature; and (6) Whether the reference under section 23(1) of the Act could be made by a single Member when the order under sub-section (5) of section 22 of the Act is passed by a Division Bench of the Board of Revenue." 6. The facts of the case as stated by the Board of Revenue are :- (1) The applicant-firm Kesarimal Pyarchand of Kamptee of which Kesarimal is the proprietor engages itself in the manufacture and sale of bidis. Kesarimal owns another shop at Mandsaur in the State of Madhya Bharat. It deals in bullion and money-lending. The shop at Mandsaur goes by the name of Nagjiram Kesarimal. Nagjiram has been Kesarimal's natural father. Pyarchand is his adoptive father. The firm at Kamptee is registered under the Madhya Pradesh Sales Tax Act, 1947, The registered number is NGP-23. The head office is situated at Kamptee. Besides Kamptee, bidis are manufactured at Khat and Kodhamendhi in Ramtek Tahsil. In addition, there are several places where bidis are manufactured. The bidis are collected and stored either at Kamptee or at the two places of business in Ramtek Tahsil. The head office is situated at Kamptee. Besides Kamptee, bidis are manufactured at Khat and Kodhamendhi in Ramtek Tahsil. In addition, there are several places where bidis are manufactured. The bidis are collected and stored either at Kamptee or at the two places of business in Ramtek Tahsil. (2) Bidis are manufactured in the State of Madhya Pradesh from the raw material available in the State or imported from outside the State. (3) Bidis are despatched outside the State in fulfillment of the orders received at the head office at Kamptee or at Mandsaur shop. Goods are consigned to the customers by railway. The railway receipts and bills are sent to the consignee either through a Bank or V.P.P. Sometimes goods are supplied on credit. Some bills are collected through the Mandsaur shop against delivery of railway receipts. (4) The gross turnover of bidis and tobacco for the quarter the 1st June, 1947, to the 12th November, 1947, amounted to Rs. 6,81,590-7-0 which included a sum of Rs. 1,890-11-6 recovered by the firm from its labourers on account of tobacco and other materials either retained or not accounted by them. The firm in its return had shown a total turnover of Rs. 6,79,699-12-0. The despatches for which particulars were supplied were as under :- Method Value of goods (i) Through bank Rs. 2,76,997 14 0 (ii) By V.P.P. Rs. 13,067 11 0 (iii) By credit system Rs. 2,07,729 1 0 ------------------ Rs. 4,97,794 10 0 ------------------ The Assistant Commissioner, Sales Tax, held that the firm was liable to pay sales tax on the total turnover of Rs. 6,81,590-7-6, which finding was maintained by the Sales Tax Commissioner in the appeal. With a slight modification the order was affirmed by the Board of Revenue. 7. As the assessment period is from the 1st June, 1947, to the 12th November, 1947, the references in this order to the various provisions of the Act and the Rules made thereunder will be to the Act and the rules as then in force. 8. As regards the first question the contention of the assessee is that he is not liable to sales tax in view of the proviso to section 4. 8. As regards the first question the contention of the assessee is that he is not liable to sales tax in view of the proviso to section 4. That proviso is :- "Provided that the tax shall not be payable on sales made in the course of the execution of a contract which is shown to the satisfaction of the Commissioner to have been entered into before the commencement of this Act." It is not disputed that the assessee effected sales after the 1st June, 1947, to the extent of Rs. 97,945-10-0 in fulfillment of the orders accepted by him prior to the commencement of the Act. The question for consideration, therefore, is whether these sales were made "in the course of the execution of a contract". In the definition of "turnover" the sale price in respect of the sale or supply of goods in the carrying out of any contract is included. "Sale price" with reference to carrying out of any contract is defined in section 2(h)(ii) as the amount payable to a dealer as valuable consideration for the carrying out of a contract less such portion representing the proportion of the cost of labour and the cost of materials used in carrying out such contract. The definition of "sale" in section 2(g) also includes the transfer of property in goods made in course of the execution of a contract. In view of these provisions, it was necessary to define "contract". It is defined in section 2(b). The learned counsel for the assessee had to concede that the sales in question were not made in pursuance of any contract as defined by this sub-section. His contention is that the word "contract" in the proviso to section 4 is not restricted to "contract" as defined but means any agreement including an agreement to sell. We are not prepared to accept this interpretation. The word "contract" must receive the interpretation of that word as stated in section 2(b), unless there is anything repugnant to the subject or context. At the commencement of the Act there must have been a large number of labour-cum-material contracts outstanding and it would have been a great hardship to such contractors to have to pay sales tax which they were not likely to recover from the owners. That was not the case with the sale of merchandise. At the commencement of the Act there must have been a large number of labour-cum-material contracts outstanding and it would have been a great hardship to such contractors to have to pay sales tax which they were not likely to recover from the owners. That was not the case with the sale of merchandise. We are therefore of the opinion that the proviso to section 4 is inapplicable to the instant case. 9. The second and third questions can be answered together. In Messrs. Shriram Gulabdas v. Board of Revenue ([1952] 3 S.T.C. 343; I.L.R. 1953 Nag. 332) it was held that Explanation II to section 2(g) as appearing in the original Act is intra vires and that the Explanation as amended by Act XVI of 1949 was not validly enacted. Explanation II as it originally stood applies to the instant case. It runs thus :- "Notwithstanding to the contrary in the Indian Sale of Goods Act, 1930, the sale of any goods which are actually in the Central Provinces and Berar at the time when the contract of sale as defined in that Act in respect thereof is made, shall, wherever the said contract of sale is made, be deemed for the purpose of this Act to have taken place in the Central Provinces and Berar." The assessee had accepted offers of customers outside the State either at the head office at Kamptee or his branch shop at Mandsaur in Madhya Bharat every time against the stocks in hand in Madhya Pradesh, and the despatches were made from the State against those agreements. Some sales were made on credit and as regards the rest the price was recovered either by V.P. post, through Bank or through the Mandsaur shop against delivery of railway receipts. On similar facts it was held in Shriram Gulabdas v. Board of Revenue ([1952] 3 S.T.C. 343; I.L.R. 1953 Nag. 332) that Explanation II is attracted and such sales will be regarded as sales within section 2(g) of the Act read with the Explanation. 10. The learned counsel for the assessee did not place before us any material to take a view different from that taken in Shriram Gulabdas's case ([1952] 3 S.T.C. 343; I.L.R. 1953 Nag. 332). We respectfully agree with the view and answer the second question in the affirmative and the third question in the negative. 11. 10. The learned counsel for the assessee did not place before us any material to take a view different from that taken in Shriram Gulabdas's case ([1952] 3 S.T.C. 343; I.L.R. 1953 Nag. 332). We respectfully agree with the view and answer the second question in the affirmative and the third question in the negative. 11. As regards the fourth question, the assessee evidently did not place full facts before the Board of Revenue. On the facts stated it appears that the assessee purchased petaras, gunny bags and other packing material and charged a flat rate for petaras and gunny bag coverings. He also charged a flat rate for cartage and hamali. It is not clear whether he hired carts and labour for each sale or employed his own carts and labourers and made a charge at a flat rate to the customers. The expenses incurred by the assessee for the packing material and labour were incurred by him on his own account and not on account of the purchasers. The sale price charged by the assessee to the customers is not exgodown but F.O.R. If this is so, it is difficult to understand how petaras, bardana an other charges are separately shown in the invoices. The learned counsel for the assessee has not thrown any light on this point. We therefore accept the fact stated in the statement of the case that "the sale price so far has been on the basis of F.O.R. prices". 12. The sale price with reference to transfer of goods in defined in section 2(h)(i) to mean the amount payable to a dealer as valuable consideration for the sale of any goods, less any sum allowed as cash discount according to ordinary trade practice, but including any sum charged for anything done by the dealer in respect of the goods at the time of or before delivery thereof other than the cost of freight or delivery or the cost of installation when such cost is separately charged. In order to deliver the goods to the railway as carrier for the buyer, the seller has to do the packing and transportation to the railway station, and one the facts in the instant case delivery did not take place till the goods were delivered to the railway for carriage. In order to deliver the goods to the railway as carrier for the buyer, the seller has to do the packing and transportation to the railway station, and one the facts in the instant case delivery did not take place till the goods were delivered to the railway for carriage. According to the assessee, he had agreed with the purchasers to charge them for the packing and transport to the railway station in addition to price, but this charge was for things to be done by the dealer in respect of the goods before delivery thereof; and consequently it would be included in the sale price unless this cost of delivery is separately charged. In the statement of the case it is stated :- "These charges as per invoices on record are included in the sale price and are covered by the charges for anything done in respect of goods until delivery." In view of these facts, the packing charges, hamali and cartage in the instant case were rightly included in the sale price. N. C. Palia and Sons v. The State of Bombay ([1952] 3 S.T.C. 145) is distinguishable as there the price was fixed by Government ex-factory and conveyance charges were separately charged in the bills. 13. The case of dharmada stands on a different footing. It is not a charge for anything done by the dealer in respect of the goods at the time of or before delivery thereof. The Board of Revenue includes it in the sale price on the ground that it is a valuable consideration for the transfer of goods i.e., price proper. We do not agree. If it were price proper, it would have been included in the price and not separately charged. There is no material on record to hold that the seller could refuse to perform the agreement if dharmada was not paid. It appears to be a wiling charge paid by the buyer in addition to the valuable consideration for the transfer of property. We are therefore inclined to hold on the material on record that it cannot be included in the sale price. 14. The next contention of the learned counsel is that the provision for taxation of sales outside the State by enlarging the definition of "sale" by Explanation II, being opposed to Article 286(1)(a) of the Constitution is ultra vires. We are therefore inclined to hold on the material on record that it cannot be included in the sale price. 14. The next contention of the learned counsel is that the provision for taxation of sales outside the State by enlarging the definition of "sale" by Explanation II, being opposed to Article 286(1)(a) of the Constitution is ultra vires. The learned counsel for the State claimed that the Act cannot be questioned because of its validation by the proviso to clause (2) of Article 286 and the Order of the President issued under that proviso. It is not necessary for the purpose of this case to examine this question because we are concerned with the liability to tax for the period from the 1st June, 1947, to the 12th November, 1947. This liability was determined and the tax was recovered before the Constitution came into force. As already pointed out, the provision was valid according to the law then in force. It is repeatedly pointed out that the rule of interpretation that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation, is applicable for the purpose of interpreting our Constitution : Keshavan v. State of Bombay (A.I.R. 1951 S.C. 128), Lachmandas v. State of Bombay (A.I.R. 1952 S.C. 235) and Habeeb Mohamed v. State of Hyderabad (A.I.R. 1953 S.C. 287). There is nothing in Article 286(1)(a) to indicate that it is retrospective. 15. The next contention of the learned counsel is that the proviso to section 22(1) of the Sales Tax Act is ultra vires the State Legislature because it imposes a condition of payment of the tax with penalty, if any, before an appeal is admitted. As stated in Shrikisan v. Dattu (I.L.R. 1952 Nag. 936 at p. 941) a person has no inherent right of appeal. It must be given by an express enactment and that is the scheme of all Acts, civil or criminal. The right, which is the creature of statute, is limited to the extent permitted by it. As the right of appeal is not an inherent right, it cannot come under the category of fundamental rights. It is therefore open to the Legislature to impose limitations on the right of appeal. 16. The right, which is the creature of statute, is limited to the extent permitted by it. As the right of appeal is not an inherent right, it cannot come under the category of fundamental rights. It is therefore open to the Legislature to impose limitations on the right of appeal. 16. It is next contended that the proceedings under section 23(1) of the Sales Tax Act could not be heard by a Member of the Board sitting alone when the order passed under sub-section (5) of section 22 which gave occasion for the reference was passed by a Division Bench of the Board of Revenue. Reliance is placed on rule 8. It provides that any matter directly affecting the revenue of the Province in which the Advocate-General or Government Advocate appears shall be placed before and heard and decided by a Bench of two or more Members as directed by the President. From a perusal of section 7 of the Board of Revenue Act and the rules framed thereunder it is manifest that the powers of the Board can be exercised by a Member sitting alone. Under rule 5(1) he may refer any proceeding pending before him to the President for constitution of Bench of two Members under certain circumstances provided in the rule. Whether the Bench of two Members heard this matter on a reference under rule 5(1) or under rule 8 is not known. There is nothing on record to show that the Advocate-General or Government Advocate appeared before the Board in the proceedings under section 23(1). It is submitted on behalf of the State that the proceedings under section 23(1) is not a matter affecting the revenue of the State directly and substantially within the meaning or rule 8. We cannot agree. The proceedings under section 23(1) are proceedings preliminary to the decision of the questions of law by the High Court. If the reference is made and is answered by the High Court, it may affect the revenue of the State substantially. According to the assessee he is not liable to pay the tax of over Rs. 21,000 imposed on him. This substantially affects the revenue of the State. The question for decision is whether the proceedings under section 23(1) directly affect the revenues of the State. According to the assessee he is not liable to pay the tax of over Rs. 21,000 imposed on him. This substantially affects the revenue of the State. The question for decision is whether the proceedings under section 23(1) directly affect the revenues of the State. This also must be answered in the affirmative because as a result of the decision of the High Court on reference under section 23(1) the Board may have to revise its order in accordance with the decision of the High Court. But we answer the question in the negative in the absence of the material that the Advocate-General or Government Advocate appeared on behalf of the State in the proceedings under section 23(1). 17. We therefore decide question (1), (2) and (4)(a) in the affirmative and questions (3), (4)(b), (5)(a) and (b), and (6) in the negative. Since the assessee has failed, he shall pay the costs of this reference. Consolidated counsel's fee of Rs. 150 for Miscellaneous Cases Nos. 153 and 105 of 1953. Reference answered accordingly.