9911796707
TMI Blog1989 (8) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... registered dealers under the Orissa Sales Tax Act, 1947 and the Central Sales Tax Act, 1956 (for short "the OST Act" and "the CST Act"). They effect sale of timber, both round and sized at their place of business referred to above to various customers and dealers belonging to Orissa, as well as Andhra Pradesh, both on cash and credit. After sale is effected they give delivery of the goods at the same place and do not take the responsibility for the movement of the goods. It is the responsibility and the risk of the purchasers to transport the goods to places inside and outside Orissa mainly to Andhra Pradesh passing through sales tax check-gates. At the check-gates the purchasers produce the cash memos and the way-bills and the sales tax a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that they did not effect inter-State sales to outside purchasers during the years under assessment. All the sales took place at their business premises at Aska Road, Berhampur and the purchasers took delivery of goods for the purpose of transportation at their risk. The petitioners never undertook to transport the goods to places outside the State. Accordingly, sales tax from the purchasers was collected at the sale point at the rate of 8 per cent. The transactions were not in accordance with section 3(a) of the CST Act and so the petitioners did not conceal any turnover of the alleged inter-State sales and there was no evasion of tax. Opposite party No. 3, however, was not satisfied with the explanation offered on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods moved through the Girisola checkgate at the border of Orissa-Andhra Pradesh, the petitioners furnished way-bills from which it appears that they had despatched the goods by trucks and such despatches were mentioned in register No. 161 (register of movement of goods to the outside States) showing the petitioners as the consignors of the goods. The entries were signed on behalf of the petitioners so as to indicate that it is they who are responsible for movement of the goods to destinations outside the State. The opposite parties have denied the petitioners' averment that they have never paid Central sales tax. As a matter of fact, from the year 1980-81 up to 1984-85 they have been assessed to Central sales tax for inter-State sales. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the consignors thereof. 6.. We heard the cases on merits at the stage of admission because at that time we thought that on the facts presented before us it would be possible to determine whether the transactions were intrastate or interState sales. But now having considered all the materials on record, we find that the facts are not clear as we thought to be. There are materials in support of the petitioners as well as against them. When the facts are disputed, it will not be possible on the part of the writ court to arrive at a final conclusion on a question of law. 7.. Out of the host of decisions cited on either side, we would like to refer to the following two decisions: In [1983] 53 STC 315 (SC); AIR 1983 SC 603 (Titaghur Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery to the Commissioner of Sales Tax under clause (a) of the second proviso to sub-section (5) of section 13 of the Act." In [1988] 70 STC 45 (Commissioner of Sales Tax v. Suresh Chand Jain), it was held by the Supreme Court that a sale can be said to be in the course of inter-State trade only if two conditions concur, viz., (i) a sale of goods and (ii) a transport of those goods from one State to another. Unless both these conditions were satisfied, there could be no sale in the course of inter-State trade. There must be evidence that the transportation was occasioned by a contract and as a result goods moved, out of the bargain between the parties, from one State to another. In fact this decision reflects the correct position of law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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