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TMI Blog1971 (10) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for 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[1964] 15 S.T.C. 753 (S.C.); 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 assesseedealer 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 Biha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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[1964] 15 S.T.C. 753 (S.C.); A.I.R. 1964 S.C. 1752., and this High Court in the case of Shankerjee Raut GopaIji Raut v. State of Bihar[1968] 22 S.T.C. 241; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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