JUDGMENT
Shambhu Prasad Singh, J.
1. At the instance of the State of Bihar, this court directed under Section 33(3) of the Bihar Sales Tax Act, 1959 (hereinafter referred to as “the State Act”), the Commercial Tax Tribunal, Bihar, to state cases and refer to the High Court the question whether on the facts and in the circumstances of the case, the Tribunal was right in holding that sales of timber by the assessee-dealer worth Rs. 31,416.09 for the period of assessment 1960-61 and Rs. 33,163.13 for the period of assessment 1961-62 had taken place in the course of inter-State trade or commerce and were not liable to be taxed under the State Act. These two tax cases arise out of the aforesaid references. Tax Case No. 69 relates to the year 1960-61 and Tax Case No. 70 to the year 1961-62.
2. The Tribunal has found the following facts and they are not in dispute;-
(i) The assessee was a registered dealer under the State Act in timber at Hazaribagh in the State of Bihar,
(ii) The purchaser was a registered dealer having his place of business at Neyamatpur in the State of West Bengal,
(iii) The purchaser used to place order on phone to the assessee for the supply of timber,
(iv) The timber so purchased by the purchaser used to be carried by truck from Hazaribagh to Neyamatpur on the same day of purchase or on the day following,
(v) The credit memos issued in favour of the purchaser showed the number of the truck which carried the goods purchased,
(vi) All the goods purchased had passed through the Chirkunda Check Post on the Bihar-Bengal Border, and
(vii) The Chirkunda Check Post declaration reveals that the goods purchased passed through this check post on the day of purchase or on the day following it
It has also been found by the Tribunal and is not in dispute that the credit memos in favour of the purchaser indicated the name of the place, i.e., Neyamatpur, where the goods were transported and that all the purchases were made by the purchaser on furnishing declaration in ‘C’ form.
3. The Superintendent of Commercial Taxes, Hazaribagh, who made the assessments and the Deputy Commissioner of Commercial Taxes, Chotanagpur Division, on appeal, held that the sales by the assessee-dealer to the purchaser for the aforesaid amounts during the aforesaid periods of assessment were not in the course of inter-State trade and, therefore, liable to be taxed under the State Act. On a revision, the Tribunal held that the sales were in the course of inter-State trade and were not liable to be taxed.
4. Section 3 of the State Act is the charging section. It is not disputed that but for the exemption provided for in Section 4 of the State Act the assessee-dealer would have been liable to pay sales tax under Section 3 of the State Act. Section 4( 1) of the State Act inter alia lays down that no tax shall be levied on sales or purchases which have taken place in the course of inter-State trade or commerce. Sub-section (2) of Section 4 of the State Act says that the provisions of the Central Sales Tax Act, 1956 (74 of 1956), shall apply for determining when a, sale or purchase shall be deemed to have taken place in the course of inter-State trade or commerce. Section 3 of the said Central Act deals with when is a sale or purchase of goods said to take place in the course of inter-State trade or commerce and runs as follows:
A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase-
(a) occasions the movement of goods from one State to another ; or
(b) is effected by a transfer of documents of title to the goods during their movement from one State to another.
Explanation 1.-Where goods are delivered to a carrier or other bailee for transmission, the movement of the goods shall, for the purposes of Clause (b), be deemed to commence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee.
Explanation 2.-Where the movement of goods commences and terminates in the same State it shall not be deemed to be a movement of goods from one State to another by reason merely of the fact that in the course of such movement the goods pass through the territory of any other State.
Section 5 of that Act explains as to when is a sale or purchase of goods said to take place in the course of import or export and is as follows:
(1) A sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India.
(2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India.
Section 4 of the State Act also exempts sales in the course of import of goods into or export of the goods out of the territory of India from taxes. A comparison of Sections 3 and 5 of the Central Act shows that the ingredients tor holding whether a sale or purchase of goods is in the course of import or export or in the course of inter-State trade or commerce are similar.
5. In Ben Gorm Nilgiri Plantations Co., Coonoor v. Sales Tax Officer, Special Circle, Ernakulam A.I.R. 1964 S.C. 1752, while dealing with the question whether the sale was in the course of export, it was observed by Shah, J. (as he then was) who spoke for the majority :
To constitute a sale in the course of export of goods out of the territory of India, common intention of the parties to the transaction to export the goods followed by actual export of the goods to a foreign destination is necessary. But intention to export and actual exportation are not sufficient to constitute a sale in the course of export, for a sale by export ‘ involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea. Such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export form parts of a single transaction’: State of Travancore-Cochin v. The Bombay Company Ltd. [1952] S.C.E. 1112 A sale in the course of export predicates a connection between the sale and export, the two activities being so integrated that the connection between the two cannot be voluntarily interrupted, without a breach of the contract or the compulsion arising from the nature of the transaction. In this sense to constitute a sale in the course of export it may be said that there must be an intention on the part of both the buyer and the seller to export, there must be an obligation to export, and there must be an actual export. The obligation may arise by reason of statute, contract between the parties, or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export. A transaction of sale which is a preliminary to export of the commodity sold may be regarded as a sale for export, but is not necessarily to be regarded as one in the course of export, unless the sale occasions export. And to occasion export there must exist such a bond between the contract of sale and the actual exportation, that each link is inextricably connected with the one immediately preceding it. Without such a bond, a transaction of sale cannot be called a sale in the course of export of goods out of the territory of India….
It was further observed that no single test could be laid as decisive for determining the question and each case must depend upon its facts.
6. In Shankerjee Raul Gopalji Raut v. State of Bihar A.I.R. 1968 Pat. 329, a Full Bench of this court had also to deal with the question when a sale is in the course of export out of the territory of India. Untwalia, J., after considering in detail the decision referred to above and other decisions of the Supreme Court on the point of exemption from tax on the ground of sales in the course of export outside the territory of India, held that there must co-exist three facts : (i) common intention of the parties to the transaction to export, (ii) actual exportation, and (iii) obligation to export, the obligation may be either of the seller or of the buyer.
7. Learned counsel for both the parties have conceded that, the same test will also apply for determining whether the sales in the two cases before us were in the course of inter-State trade or not. Mr. Shree Nath Singh appearing for the State has contended that the Tribunal has not recorded any finding on the questions whether there was a common intention of the parties to the transaction to transport outside the State and whether there was an obligation to transport outside the State either on the part of the seller or of the buyer. He has further contended that even if it be held that there are such findings by implication in the order of the Tribunal, they are inferences from the facts found by it and not justified on those facts. On the other hand, Mr. Tarkeshwar Prasad for the assessee-dealer has contended that the Tribunal has expressly recorded its findings on these questions and the findings are fully justified on the facts and in the circumstances of the cases.
8. The Tribunal, while allowing the applications in revision of the assessee-dealer after discussing various case laws cited before it at the end of paragraph 6 of its judgment has said :
In other words the true test is whether the sale occasions the movement of goods from one State to another and whether the sale and resultant transport of the goods outside the State form part of a single and integrated transaction.
After discussing the facts of the cases before it, at the end of paragraph 8 of its judgment, the Tribunal has observed:
In the circumstances of the case, we accept the contention of the applicant that the movement of the goods outside the State is an integral part of the agreement of sale.
The test laid down by the Tribunal is the same as laid down by the Supreme Court in Ben Gorm Nilgiri Plantations Co., Coonoor v. Sales Tax Officer, Special Circle, Ernakulam A.I.R. 1964 S.C. 1752. True it is that the Tribunal has not expressly said that there was a common intention of the parties to the transaction to transport outside the State and there was an obligation also to transport outside the State. But its finding quoted above that the movement of the goods outside the State was an integral part of an agreement of sale amounts to a finding that there was a common intention of the parties to the transaction to transport outside the State and there was also an obligation to transport outside the State,,
9. Mr. Shree Nath Singh, learned counsel for the State, has also contended that, in the absence of a finding by the Tribunal on the aforesaid question it was a fit case where a supplementary statement should be called for under Section 33(4) of the State Act. In support of this contention, he has relied on the order dated 9th of July, 1968, in Tax Cases Nos. 7 and 21 of 1966 Since reported as H. A. Brothers v. The State of Bihar [1971] 28 S.T.C. 89. In appropriate cases, supplementary statement can be called for, there can be no doubt. But in the instant cases, in my opinion, the Tribunal has recorded findings on those questions and no supplementary statement is needed. In that very order, it was also observed by this court that whether the obligation was there or not is a question of fact which has to be determined by the Tribunal.
10. In my opinion, there is also no substance in the contention of Mr. Singh that, on the facts of the cases, the finding of the Tribunal was not justified. I do not think that on the facts found by it the Tribunal could not have drawn inferences necessary for the aforesaid findings and further facts were necessary to be proved by the assessee-dealer as contended by Mr. Singh. The fact that there were credit memos issued by the assessee-dealer in favour of the purchaser which indicated the registration number of trucks which carried the purchased goods and also name of the place in another State where the goods were to be transported and that the purchases were made by the purchaser on furnishing declaration in ‘C’ form are sufficient for drawing an inference that there was an obligation to transport outside the State on the part of the purchaser as agreed to between the parties, i.e., the assessee-dealer and the purchaser, that he would carry the goods to the State of West Bengal from the State of Bihar.
Form ‘C’ in which declaration was made is prescribed by the Central Government under Rule 12(1) framed under the Central Act. The declaration in that form has to be made only if the goods are taken from the State to another State. Rule 12(1) provides that the declaration and the certificate referred to in Sub-section (4) of Section 8 shall be in forms ‘C’ and ‘D’ respectively. Section 8(4) of the Central Act lays down that the provisions of Sub-section (1) of that section shall not apply to any sale in the course of inter-State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner a declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particular’s in a prescribed form obtained from the prescribed authority. Under Section 8(1 )(b) every dealer, who in the course of inter-State trade or commerce sells to a registered dealer other than the Government goods of the description referred to in Sub-section (3) is made liable to pay tax under the Act. By obtaining a declaration in form ‘C’ from the purchaser the assessee-dealer wanted to make himself liable for payment of tax under the Central Act and exempted from the payment of the tax under the State Act. Thus, in my opinion, there can be no doubt on the facts and in the circumstances of the case, as found by the Tribunal that there existed a common intention of the parties to the transaction to transport outside the State and an obligation to transport outside the State on the part of the buyer. By not transporting the goods outside this State the buyer would have made the assessee-dealer liable for payment of tax under the State Act and the assessee-dealer could have sued him for the breach. Thus, in my opinion, all the necessary ingredients for making the sales in the course of inter-State trade or commerce do co-exist in the instant cases.
11. I accordingly answer the questions referred to us in either case in the affirmative. The assessee-dealer shall be entitled to its costs. Hearing fee is assessed at Rs. 250 only.
Shiveshwar Prasad Sinha, J.
1. I agree that the answer to the question raised in these two references has to be in the affirmative. The question, whether the sale was an intra-State sale or inter-State sale was essentially one of fact, provided the necessary ingredients for constituting a sale as an intra-State sale or inter-State sale are there. Now, in the case of inter-State sale, the Supreme Court in Ben Gorm Nilgiri Plantations Co., Coonoor v. Sales Tax Officer, Special Circle, Ernakulam A.I.R. 1964 S.C. 1752, and this High Court in the case of Shankerjee Raut Gopalji Raut v. State of Bihar A.I.R. 1968 Pat. 329, have laid down the principles and the necessary ingredients which constitute an inter-State sale. So far as the dealer is concerned the obligation on him is only to produce the evidence and it is upon the assessing authority to deduce from that evidence whether the necessary ingredients are there. In the cases here, on the seven facts, which have been noticed in my learned brother’s order, as having been found by the Tribunal, does constitute good and sufficient evidence on the basis of which the Tribunal could come to the conclusion that “in the circumstances of the case, we accept the contention of the applicant that the movement of the goods outside the State is an integral part of the agreement of sale”. This finding does connote the necessary ingredients, which, as laid down in the same two case laws, constitute a sale of an inter-State nature.