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TMI Blog1969 (5) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... case and refer the following two questions: (1) Whether in the facts and circumstances of the case, the learned Tribunal was justified to hold that the petitioner was a purchaser of fish and not a commission agent in relation to the catchers of fish. (2) Whether in the facts and circumstances of the case, when section 3-B is read with its proviso, there can be a purchase tax on the petitioner, all of whose fish were bound to be sent outside Orissa and in fact were sold outside Orissa. The Tribunal rejected the first question as being a pure question of fact. The finding of fact recorded by the assessing authorities, that the petitioner was a purchaser of fish and not a commission agent of the fishermen, is not assailed before us. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act was for the first time introduced in the statute. It runs thus: "3-B. Goods liable to purchase tax.-The State Government may, from time to time by notification, declare any goods or class of goods to be liable to tax on turnover of purchases: Provided that no tax shall be payable on the sales of such goods or class of goods declared under this section." The State Government imposed purchase tax on fish with effect from 1st February, 1959, by notification. Mr. Bhattacharya contends that this section read as a whole postulates that it can have application only in those cases where both the taxes, one at the purchase point and the other at the sale point, can be realised from the petitioner. This contention has no force. 4.. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in State of Orissa v. Gobinda Rath [1960] 11 S.T.C. 744 (S.C.). The facts in that case, on the basis of which the Supreme Court quashed the assessment of sales tax, were that the assessee in that case exported fish to purchasing dealers at Calcutta whom he called his commission agent. The Calcutta dealers regularly sent the assessee advances against fish exported to them for sale. The assessee purchased the fish in Orissa and consigned the same by rail at railway stations situate within the State. The purchasing dealers took delivery of the fish in Calcutta, stocked them in their godowns and ultimately sold them to third parties and remitted the value of the goods to the assessee deducting advances paid and godown and other charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention requires careful examination. Section 3 of the Central Act, so far as relevant, runs thus: "Section 3. 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." The identical expression "occasions the movement of goods" has been used in section 5(2) of the Central Act. Section 5(2), so far as relevant, lays down: "5. (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..........." That the contents of section 3(a) and section 5(2) of the Central Act are the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yse the various elements to be taken into consideration for distinguishing two types of cases, namely, a transaction which may be called a sale for export and which is a sale in the course of export. A sale can be said to occasion an export only if the following conditions are fulfilled: (1) There is common intention of both the seller and the buyer to export; (2) There is an obligation to export; (3) There is an actual export. This obligation to export may arise either from statute or contract between the parties or from mutual understanding or agreement between them and even from the nature of the transaction which links the sale to the export. The bond between the sale and the export would be such which cannot be destroyed except witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh to Calcutta though in fact fish purchased were exported. The assessee could have sold the fish inside Orissa after the purchase. Even assuming that the assessee had the intention from the very start that he would export the fish to Calcutta, there is no proof that he had an obligation to export the fish to Calcutta. The mere factual export of fish does not therefore bring the case as being a sale in the course of inter-State trade. In paragraph 8 in B.G.N. Plantations v. Sales Tax Officer[1964] 15 S.T.C. 753 (S.C.); A.I.R. 1964 S.C. 1752., their Lordships gave the following illustration: "For instance, the foreign purchaser either by himself or through his agent purchases goods within the territory of India and exports the goods and even ..... X X X X Extracts X X X X X X X X Extracts X X X X
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