( 1 ) THE petitioner is an existing company under the Companies Act and carries on business as agent and distributor of cement in the State of West Bengal. The petitioner is a registered dealer under the Bengal Finance (Sales Tax) Act, 1941 (Bengal Act VI of 1941), hereinafter referred to as the Sales Tax Act, and deals in cement. According to its case, since 1948 cement has been and is a controlled commodity and its distribution is completely regulated by the West Bengal Cement Control Act, 1948 (XXVI of 1948) hereinafter referred to as the Cement Control Act and the orders thereunder made under section 3 (2 ). Section 3 (1) inter alia provides for regulation of production, supply and distribution of cement for ensuring equitable supply and distribution of cement at fair prices in West Bengal. By the Cement Control Order 1948 framed thereunder no sale or purchase of cement should be made except in accordance with conditions contained in the written order, issued by the Director of Consumer Goods, West Bengal Regional Honorary Adviser to the Government of India at Calcutta or officers authorized by them, at prices not exceeding the notified price. The petitioner is a licensed stockist of cement and is permitted to stock cement in its godown to be supplied to parties at stipulated price in accordance with permit as may be issued by authorities of Government. The authorities used to issue permits (specimens annexed to the petition and marked 'a') by which a specified quantity of cement is allotted to a permit holder to be delivered by the petitioner at the price specified therein. The validity of the permit is for 15 days and as soon as the amount of price of cement is deposited with the stockist, he is bound to deliver to such permit holder the specified quantity of cement at the specified price. The petitioner contends that no volition or bargaining power to left to the petitioner in such transactions and there is no element of mutual assent or agreement between the registered stockist and permit holder which would make the transaction a sale under the Sales Tax Act. The petitioner contends that no volition or bargaining power to left to the petitioner in such transactions and there is no element of mutual assent or agreement between the registered stockist and permit holder which would make the transaction a sale under the Sales Tax Act. If however it is contended that such transactions are sales within the meaning of the Sales Tax Act, the definition of sale in the said Act is ultra vires the legislative competency of the provincial legislature under the Government of India Act, 1935 or of the State legislature under the Constitution. ( 2 ) THE petitioner states that it was assessed under the Sales Tax Act in respect of transactions as such stockist under the said Act and its orders as aforesaid for assessment periods by quarters ending on January 31, of each year from 1956 to 1959 by the respondent No. 1 who held such transactions to be sales. The petitioner also mistakenly believed the transactions as sales and lawfully taxable. On perusal of the decision of the Supreme Court in (1) New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar A. I. R. 1963 S. C. 1207 the petitioner realized his mistake. The petitioner accordingly filed appeal against the assessments mentioned above and the Assistant Commissioner of Commercial Taxes disposed of the appeals holding that the sales made by the petitioner were taxable, as there were several other factors in such transactions regarding which the parties could decide themselves by mutual contract. The permit only indicated the base price of the cement while the petitioner also charged sales tax on value of cement in such transactions and also in certain cases loading charges. The petitioner, it was held, was free to decide with the customer the amount to be paid as sales tax and also to refuse delivery of goods if the customer failed to pay the amount of sales tax. It was also open to the petitioner to agree with its customer about the date or place of delivery and loading charges which predicated mutual consent. It was also open to the petitioner to agree with its customer about the date or place of delivery and loading charges which predicated mutual consent. Following the decision in (2) Indian Steel and Wire Products Ltd. v. State of Madras A. I. R. 1968 S. C 478 it was held that the p arties were free to decide in other respects their own terms of contract and the transactions under consideration are accordingly sales liable to tax under the Act. The appeal was accordingly rejected. The said judgment is annexure 'b' to the petition. The petitioner has preferred revision petitions against the said decisions which are pending. ( 3 ) THE petitioner was assessed for sales tax for supplies of cement under provisions of the Cement Control Act for assessment periods by quarters ending with 31st January of each year from 1963 to 1966 (annexure 'c') and the appeals therefrom are pending. In view of the decision of the Sales Tax Authority referred to above, the petitioner submitted that there will be no scope for obtaining any relief from the authorities in the department and such authorities again cannot decide the question of vires of the Sales tax Act. ( 4 ) THE petitioner contends that the dispatches of cement under the Cement Act and order thereunder do not constitute sales under the Sales Tax Act as there is no agreement or consent between the parties in respect thereof nor has the stockist any volition in such matters and accordingly the transactions are not sales and the respondents have no jurisdiction to impose sales tax thereon. It is further contended that the provincial legislature under the Government of India Act, 1935 or the State Legislature under the Constitution has no competency to levy sales tax on desptaches and supply of cement under the provisions of the Cement Act. ( 5 ) ON these allegations and contentions the petitioner moved this Court in Constitutional Writ Jurisdiction praying for a writ declaring that the Sales Tax Act in so far as it authorizes imposition of sales tax on the stockist with respect to supplies of cement by the stockist to the permit holder under the provisions of the Cement Act are ultra vires. A writ in the nature of certiorari quashing and canceling the assessment orders copies whereof has been annexed to the petition as Annexure 'c' has also been prayed with also a prayer for a writ in the nature of prohibition commanding the respondents to refrain from making any assessments. ( 6 ) THE rule is opposed by the respondents 1 to 4 who filed an affidavit-in-opposition contending that the rule should be discharged as appeals are pending against the impugned assessments. The application is not maintainable as the assessments for different years were made first as late as in January 11, 1967 and the last assessment was made on December 10, 1969. The petitioner also treated all these transactions as sales and there is also volition between the parties to the transaction about bargaining power, selection of party, fixation of price and willingness to sell the commodity. It was contended that the relevant transactions are sales and as such taxable under the law and the contentions in the petition to the contrary were denied. ( 7 ) THE petitioner filed an affidavit-in-reply disputing the allegations and contentions of the state and reiterated those made in the petition. ( 8 ) THE definition of sale in section 2 clause 'g' of the Sales Tax Act is as follows: ? 'sale' means any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of a contract, but does not include a mortgage, hypothecation, charges or pledge. ? in common parlance a sale is a transfer of the ownership of a thing from one person to another in consideration of price paid or to be paid. This definition might include, it may be said, transactions like the ones we are concerned with. The legislative power to impose tax on sales is provided in Entry 48 of the Government of India Act, 1935 List II of the Seventh Schedule, whereby under section 100, the Provincial Legislature has the power to make laws for a Province with respect to any matters enumerated in List II in the said schedule. Entry 48 is as follows: ?taxes on sale of goods and advertisements?. In interpreting this entry, the Supreme Court in the (3) State of Madras v. Gannon Dunkerley and Co. Entry 48 is as follows: ?taxes on sale of goods and advertisements?. In interpreting this entry, the Supreme Court in the (3) State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd. A. I. R. 1958 S. C. 560, which was concerned with a building contract, observed: ?we think that the true legislative intent is that the expression ?sale of goods? in Entry 48 should bear the precise and definite meaning it has in law and that meaning should not be left to fluctuate with the definition of ?sale? in laws relating to sale of goods which might be in force for the time being. ? after repelling the contentions for a wider interpretation of the word ?sale?, the Supreme Court further observed. ?we are of opinion that the provisions in the Government of India Act, 1935 relied on for the appellant are too inconclusive to support the inference that ?sale? in Entry 48 was intended to be used in a sense different from that in the Sale of Goods Act ?? further ?if the words ?sale of goods? have to be interpreted in their legal sense, the sense can only be what it has in the law relating to sale of goods. The ratio of the rule of interpretation that words of legal import occurring in a statute should be construed in their legal sense is that those words have, in law, acquired a definite and precise sense, and that accordingly and Legislature must be taken to have intended that they should be understood in that sense. . . We are accordingly of opinion that on the true interpretation of the expression ?sale of goods? there must be an agreement between the parties for the sale of the very goods in which eventually property passes. ? the Court was of opinion that the expression 'sale of goods' must be construed in the sense which it has in the Sale of Goods Act ?the expression 'sale of goods' in Entry 48 is a nomen juris, its essential ingredients being an agreement to sell movable for a price and property passing therein pursuant to that agreement. ? ? the Court was of opinion that the expression 'sale of goods' must be construed in the sense which it has in the Sale of Goods Act ?the expression 'sale of goods' in Entry 48 is a nomen juris, its essential ingredients being an agreement to sell movable for a price and property passing therein pursuant to that agreement. ? it was held that in such building contract which is entire and indivisible there is no sale of goods and it is not within the competence of the Provincial Legislature under Entry 48 to impose a tax on the supply of materials used in such contract treating it as a sale. The Supreme Court was also specific in the enunciation of the connotation of the word 'sale' in the State of goods Act, 1930 as distinguished from the 'sale' in common parlance. It may be observed that under section 4 of the Sale of Goods Act a contract of sale of goods is a contract where the seller transfers or agrees to the buyer for a price. To constitute a sale, as enunciated by Benjamin on 'sale', 8th Edn. , there must be (i) parties competent to contract, (ii) mutual assent (iii) a thing the absolute and general property in which is transferred from the seller to the buyer and (iv) a price in money paid or promised. ( 9 ) IN (1) New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar, A. I. R. 1963 S. C. 1207, the Court was considering if supply of sugar under directions of the Sugar Controller of India in exercise of the authority under Sugar and Sugar Products Control Order 1946 amounted to sale and transaction could be taxed under Bihar Sales Tax Act. The procedure under the said order is that the Government of States intimate to the Sugar Controller their respective requirements and mills also send the statement of stock held by them. On consideration thereof the Controller makes allotments and issues allotment order to mills who supply sugar to states in accordance with the dispatching instructions. In the appeals before the Supreme Court, the matter for consideration was whether the disposal of sugar in the facts and circumstances was liable to be taxed. On consideration thereof the Controller makes allotments and issues allotment order to mills who supply sugar to states in accordance with the dispatching instructions. In the appeals before the Supreme Court, the matter for consideration was whether the disposal of sugar in the facts and circumstances was liable to be taxed. The High Court of Patna answered the reference in the affirmative holding sugar so dispatched was liable to be taxed under the said Act but the Supreme Court by a majority judgment allowed the appeals of the assesses. It was observed referring to Entry 48 List II of Seventh Schedule of the Government of India Act, 1935 that the expression ?sale of Goods? was not defined in the Government of India Act but it is now settled law that the expression has to be understood in the sense in which it is used in the Sale of Goods Act. ( 10 ) IT was further observed by Shah, J. , who delivered the majority judgment, in regard to the definition of sale in Bihar Sales Tax Act, which is pari materia with definition of 'sale' in Bengal Sales Tax Act, as follows: ?. . . . It must be regarded as implicit that the transaction was to have all the elements which constitute a sale within the meaning of Sale of Goods Act. Use of the expression ?including a transfer of property in goods involved in the execution of the contract? in the first paragraph of the definition also does not justify the inference that the transfers of property in goods under the earlier part of the definition were not to be the result of a contract of sale. If any such intention was attributed to the Legislature the legislation may, for reasons already stated to be beyond the competence of the Legislature. The non-onstante clause in the second proviso is in truth in the nature of an explanation to the charging section; it merely fixes the situs of sale. If there is no sale the second proviso will have no application. ? in this dissenting judgment, Hidayatullah, J. (as he then was), observed:?. . . . The non-onstante clause in the second proviso is in truth in the nature of an explanation to the charging section; it merely fixes the situs of sale. If there is no sale the second proviso will have no application. ? in this dissenting judgment, Hidayatullah, J. (as he then was), observed:?. . . . So long as the parties trade under controls at fixed price and accept these as any other law of the realm because they must, the contract is at the fixed price both sides having or deemed to have agreed to such a price. Consent under the law of contract need not be express, it can be implied. There are cases in which a sale takes place by operation of law rather than by mutual agreement express or implied. See Benjamin on Sale (8th Edn. P. 91 ). The present is just another example of an implied contract with an implied offer and implied acceptance by the parties. What I have said about price applies also to quantity and quality. The entry in No. 48 of List II Seventh Schedule dealt with sale of goods in all its forms. We have seen above how numerous are these forms. The entry was expressed in six simple words but was meant to include a power to tax sale in all its forms. It was not meant to operate only in those elementary cases where there is an offer by A and an acceptance by B with the price as consideration. The concept of taxes on sale of goods is more complicated and the relations of people do not always take elementary forms. When the Province after receiving the permit telegraphed instructions to dispatch sugar and the mill dispatched it, a contract emerged and consent must be implied on both sides though not expressed antecedently to the permit. The indent of the Province was the offer to purchase sugar of such and such quality and quantity. The mills by quoting their sugar offered to sell sugar. The Controller brought the seller and purchaser together and gave his permission with respect to a particular quantity and quality. . . . No doubt, there is compulsion in both selling and buying. . . a compelled sale is nevertheless a sale. . . . ?as to mutually it was observed:?but sales often take place without a volition of a party. . . . . . No doubt, there is compulsion in both selling and buying. . . a compelled sale is nevertheless a sale. . . . ?as to mutually it was observed:?but sales often take place without a volition of a party. . . The affairs of the world are very complicated and sales are not in their elementary forms. Due to short supply or maldistribution of goods, controls have to be imposed. There are permits, price controls, rationing and shops which are licensed. Can it be said that there is no sale because mutuality is lost on one account or another?. . . . The entry should be interpreted in a liberal spirit and not to cut down by narrow technical considerations. The entry in other words should not be shorn of all its content to leave a mere husk of legislature power. For the purposes of legislation such as on sales tax it is only necessary to see whether there is a sale express or implied. . . If a sale express or implied is found to exist then tax must follow in these transactions there was sale of sugar for a price and the tax was payable. ? ( 11 ) IN (2) Indian Steel and Wire Products Ltd. v. State of madras, A. I. R. 1968 S. C. 478, it was held that to constitute a valid sale there should be the four elements which have been referred to above. The directions issued by the Iron and Steel Controller for supply of materials to the parties, under the relevant orders, related only to the fixing of the base price. The company was to supply the goods at its convenience and it was open to the company to agree with its customers as to date of delivery and to fix time for payment. It appeared also that order booked were subject to the company's terms of business and general understanding in force at the time of booking the orders and dispatch of goods. It was held that it could not be contended that the transactions were completely regulated and controlled by the Controller leaving no room for mutual consent. The Controller's directions were confined to narrow limits and there were several matters which the parties could decide by mutual assent. It was held that it could not be contended that the transactions were completely regulated and controlled by the Controller leaving no room for mutual consent. The Controller's directions were confined to narrow limits and there were several matters which the parties could decide by mutual assent. Though area of bargaining is reduced, so long as mutual assent has not been completely excluded in any dealing, in law it is a contract and the transactions amount to sales. The State therefore could impose sales tax under entry 54 List II Schedule VII of the Constitution. ( 12 ) IN (4) Andhra Sugar Ltd. and another v. State of Andhra Pradesh and others, A. I. R. 1968 S. C. 599, it was reiterated that ?sale of goods? in Entry 54, List II Schedule VII of the Constitution must be interpreted in the legal sense which it has in the Sale of goods Act. In order to constitute a sale there must be an agreement for sale of goods for a price paid and the passing of property therein to such an agreement Under Andhra Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1961 and rules thereunder, the canegrower is free, though not bound, to offer sale of cane to occupier of the factory who is bound to accept it and the offer and acceptance is recorded in an agreement on prescribed terms and conditions. The consent of the occupier to the agreement is not caused by coercion, undue influence, fraud, misrepresentation or mistake, though there is legal compulsion under the law for the occupier to enter into the agreement. Such agreement is made for lawful consideration with lawful object and is neither void nor voidable and is enforceable in law and are contracts of sale as defined in Sale of Goods Act. It is observed that: ? persons exercising certain callings or having monopoly or near monopoly powers should sometimes be charged with duty to serve the public and if necessary to enter into contracts. The factory owner or their combines enjoyed a near monopoly of buying and could dictate their own terms. In this unequal contest between the cane growers and the factory owners, law stepped in and compelled the factory to enter into contract's of purchase of cane offered by cane growers on prescribed terms and conditions. ? The factory owner or their combines enjoyed a near monopoly of buying and could dictate their own terms. In this unequal contest between the cane growers and the factory owners, law stepped in and compelled the factory to enter into contract's of purchase of cane offered by cane growers on prescribed terms and conditions. ? it was held that the State Legislature is competent to tax purchase of canes made under such contract. ( 13 ) IN (5) State of Rajasthan and another v. Karam Chand Thappar and Brothers (Coal Sales) Ltd. A. I. R. 1969 S. C. 343, it was held that though price of coal was fixed by Colliery Control Order and in some cases. Government issued directions for supply in this case there was an agreement of sale between the parties competent to contract though at the price fixed which was super-imposed on the contract. In pursuance of the agreement of sale, property in the goods supplied passed to the purchaser for price agreed to be paid. The transaction was, therefore, one of sale of goods within the meaning of Rajasthan Sales Tax Act. ( 14 ) IN (6) Chitter Mal Narain Das v. Commissioner of Sales Tax Act, A. I. R. 1970 S. C. 2000, it was observed that a sale predicate a contract of sale of goods between persons competent to contract for a price paid or promised. A transaction in which an obligation to supply goods is imposed and which does not involve any obligation to enter into a contract, cannot be called a 'sale', even if the person supplying goods is declared entitled to the value of the goods, which is determined or determinable in the manner prescribed. It was further observed that assuming that between the licensed dealer and the Controller there may be some arrangements about the place and manner of delivery of wheat and payment of ?controlled? price the operation of clause 3 of U. P. Wheat Procurement (Levy) Order providing for compulsory sale to Government of 50% of the wheat procured or purchased by a licensed dealer, does not on that account become contractual. There is no scope for any negotiations in such transactions and fixing place of delivery or time for payment on basis of some consensual arrangement does not result in a contract of sale. There is no scope for any negotiations in such transactions and fixing place of delivery or time for payment on basis of some consensual arrangement does not result in a contract of sale. There is no sale within meaning of section 2 (h) of the U. P. Sales Tax Act in such case and the person supplying wheat is not liable to pay sales tax on the price of wheat supplied. It may be noted that definition of sale in this Act is pari materia with the definition of sale under the Bengal Act. ( 15 ) THE latest pronouncement of the Supreme Court on the subject is the decision in (7) Salar Jung Sugar Mills Ltd. v. State of Mysore and others, A. I. R. 1972 S. C. 87-1972 (1) S. C. C. 23. The Court in a Bench of seven judges was considering in this case if there was absence of mutual assent by and between the sugar mills and the cane growers in respect of transactions under the Mysore Sugarcane (Regulation of Supply) (Municipal) Order, 1965 and if there was purchase and sale of sugarcane in these transactions. Under this order the quantity of sugarcane the factory was determined to requires was 1. 5 lac tons a year for its crushing capacity which was also determined by the rules, at 1000 tons a day. The factory was to secure this quantity of sugarcane under clause 3 (2) from the reserved areas specified in schedule I and the growers therein were also required to supply 95% of the sugarcane grown by them to the factory. The growers and the factory were required to enter into an agreement for supply and purchase of sugarcane. The minimum price was fixed and the supply fixed at 95% of the yield and its receipt by the factory and the agreement following were all under the statute. ( 16 ) THE Supreme Court on a review of the decision on the subject observed: ? these decisions establish that statutory orders regulating the supply and distribution of goods by and between the parties under Control Orders in a State do not absolutely impinge on the freedom to enter into contract. ( 16 ) THE Supreme Court on a review of the decision on the subject observed: ? these decisions establish that statutory orders regulating the supply and distribution of goods by and between the parties under Control Orders in a State do not absolutely impinge on the freedom to enter into contract. Legislative measures or statutory provisions fixing the price, delivery, supply, restricting areas for transactions are all within the realm of planning economic needs ensuring production and distribution of essential commodities and basic necessities of community. The recent trends in these legal rules delimit the variety of structure of rights and duties which individuals may create by such acts and transactions. The complexity of modern activities and the consequent difficulty of providing for every eventuality have shaken fervour for freedom of contract as there was during the nineteenth century. The economic environment has changed. The individual freedom is to be reconciled with adequate performance by the Government of its functions in a highly organized society. Delimiting areas for transactions or parties or denoting price for transactions are all within the area of individual freedom of contract with limited choice by reason of ensuring the greatest good for the greatest number by achieving proper supply at standard or fair price to eliminate the evils of hoarding and scarcity on the one hand and availability on the other. ? ( 17 ) IT was further observed with reference to Benjamin on Sale 8th Edn. P. 68 that assents need not be as a general rule expressed and it may be implied from their language or from their conduct, even by not gesture or silence. Even soothe assent must, in order to constitute a valid contract, be mutual and intended to bind both sides and also co-exist on the same moment of time. Scrutinising the transactions under consideration, it was observed: ?the Control Orders are to be kept in the forefront for appreciating the true character of transactions. It is apparent that the area is restricted. The parties are determined by the order. The minimum price is fixed. The minimum quantity of supply is also regulated. These features do not complete the picture. The entire transaction indicates that the parties agree to buy and sell. The parties choose the terms of delivery. The parties have choice with regard to obtaining supply of a quantity higher than 95 percent of the yield. The minimum price is fixed. The minimum quantity of supply is also regulated. These features do not complete the picture. The entire transaction indicates that the parties agree to buy and sell. The parties choose the terms of delivery. The parties have choice with regard to obtaining supply of a quantity higher than 95 percent of the yield. The parties can stipulate for a price higher than the minimum. The parties can have terms for payment in advance as well as in cash. A grower may not cultivate and there may not be any yield. A factory may be closed or wound up and may not buy sugarcane. A factory can reject goods after inspection. The combination of all these features indicates that the parties entered into agreement with mutual assent and with volition for transfer of goods in consideration of price. Transactions of purchase and sale may be regulated by schemes and may be liable to restrictions as to the manner or mode of sale. Such restrictions may become necessary by reason of co-ordination between production and distribution in planning the economy of the country. ? the Supreme Court, as it appears, did not accept the view of Hidayatullah, J. in India Sugar Mill's case in which it was observed that Entry 48 includes powers to tax sale in all forms and a compelled sale is also a sale, and parties carrying on trade under controls must be deemed to have agreed to such sale, on implied contract with implied offer and implied acceptance. ( 18 ) THE ratio of the decisions referred to above is as follows: (I)the definition of 'sale' occurring in Entry 48 List II of the Seventh Schedule of the Government of India Act, 1935 and also in Entry 54 of List II of the Seventh Schedule of the Constitution is to be interpreted in the sense in which the word 'sale' is used in the Indian Sale of Goods Act. The four elements required in a sale are (a) parties competent to contract (b) mutual assent (c) properly in thing to be transferred and (d) price to be paid. (II) the present society of planned economy controlling production and distribution of essential commodities by Government has limited the freedom of contract to an appreciable extent. The four elements required in a sale are (a) parties competent to contract (b) mutual assent (c) properly in thing to be transferred and (d) price to be paid. (II) the present society of planned economy controlling production and distribution of essential commodities by Government has limited the freedom of contract to an appreciable extent. Even within such restrictions so long as mutual assent is not completely excluded, where parties enter into agreement with mutual assent and with volition for transfer of goods in consideration of price the transactions, based on contract, will be sales under the Indian Sales of Goods Act and thus taxable under the Sales Tax Acts. ( 19 ) LEARNED counsels of parties have referred to the decisions cited above in support of their respective contentions. Mr. R. C. Deb appearing with Mr. Somendra Chandra Bose and Mr. Mukul Prakash Banerjee, learned Advocates for the petitioner contended that mutual assent vital for formation of a contract, has been completely excluded from the transactions of supply of cement under the Cement Control Act and its order, so that on the above authorities, the transactions are not based on contract and thus they are not sales under the Sales Tax Act. Mr. P. K. Sen Gupta appearing with Mr. Samarendranath Dutta, learned Advocates for the respondents, on the other hand contended, also relying on above authorities, that there was enough volition left to parties for mutual assent on many aspects of the transactions which result in contract between the parties over those matters. The transactions accordingly are sales and liable to sales tax. ( 20 ) IN the West Bengal Cement Control Act 1948 under section 3 power has been reserved to the State Government to control production, supply and distribution of cement and such power is to be exercised through orders as may be issued by the Government. The transactions accordingly are sales and liable to sales tax. ( 20 ) IN the West Bengal Cement Control Act 1948 under section 3 power has been reserved to the State Government to control production, supply and distribution of cement and such power is to be exercised through orders as may be issued by the Government. Section 6 provides that if any person contravenes any order made under section 3, he shall be punishable with imprisonment or fine or with both and goods may by order of Court be forfeited to the Government Section 16 provides that any order issued in exercise of powers conferred by the West Bengal Cement Control Ordinance which preceded the Cement Control Act and the provisions whereof are in pari materia with those of the said Cement Control Act, on its ceasing to be operative is to be deemed to be issued under the said Act. ( 21 ) THE Government of West Bengal in exercise of powers conferred by section 3 (1) of the West Bengal Cement Control Ordinance (West Bengal Ordinance IX of 1948) read with clauses (b), (c), (d), (e), (f) and (g) of sub-section 2 of that section issued an Order No. 10333 D. C. S. on August 18, 1948 (published in Calcutta Gazette on August 19, 1948 Part I, p. 683 ). The relevant provisions of the said order are quoted below:?1. NO person shall, after the commencement of this Order, sell or store for sale any cement unless he holds a licence in this behalf under this Order and except in accordance with the conditions specified in such licence obtained from the Director of Consumer Goods, West Bengal, or any officer authorized by him in writing in this behalf. . . 2. NO person shall dispose of or agree to dispose of any cement except in accordance with the conditions contained in a written order of the Director of Consumer Goods, West Bengal or the Regional Honorary Cement Adviser to the Government of India, Calcutta, or any officer authorized by the said Director or the Adviser, as the case may be. 3. NO person shall dispose of or agree to dispose of any cement except in accordance with the conditions contained in a written order of the Director of Consumer Goods, West Bengal or the Regional Honorary Cement Adviser to the Government of India, Calcutta, or any officer authorized by the said Director or the Adviser, as the case may be. 3. No person shall acquire or agree to acquire any cement from any person except inaccordance with the conditions contained in a written order of the Director of Consumer Goods, West Bengal, of the Regional Honorary Cement Adviser to the Government of India, Calcutta, or any officer authorized by the said Director or Adviser, as the case may be. . . . 4. NO person or stockist who has any stock of cement in his possession and to whom a written order has been issued under paragraph 2 shall refuse to sell the same, at a price not exceeding the notified price, and the seller shall deliver the cement to the buyer within a reasonable time after payment of the price. ? ( 22 ) SPECIMEN form for application for grant of licence as also form of licence has been annexed to the said order. This order on the expiry of the Ordinance is to be deemed to be an order issued under the Cement Control Act, as already stated. ( 23 ) THE transactions with which we are concerned in the Rule are based on the permit (specimen copies annexed to the petition and marked Annexure 'a') issued by the Government of West Bengal under the Cement Control Act and its order. By this permit, a specified quantity of cement is allotted to a particular person or institution and a stockist is directed to deliver the said quantity of cement to the allottee at specific rate per ton on deposit with such stockist the calculated value thereof within 15 days and actual delivery has to be taken within fifteen days. The validity of the permit is for a period of fifteen days from date of issue. ( 24 ) THE above permit is complete in itself and is not to be nor required to be followed by any agreement. The purchaser as an allottee of the permit is a nominee of the Government. The validity of the permit is for a period of fifteen days from date of issue. ( 24 ) THE above permit is complete in itself and is not to be nor required to be followed by any agreement. The purchaser as an allottee of the permit is a nominee of the Government. The rate of cement per ton and the total value of the cement for delivery to the allottee are specifically mentioned and fixed in the permit. While the time for payment of price is also fixed, there is no scope for refusal by the stockist to give delivery under the permit and the validity of the permit is to be lapsed after fifteen days from its date of issue and under no circumstances its validity is to be extended. Though the place from which delivery is to be taken is not mentioned, the Licence issued to the stockist under the cement order mentions the place of storage of cement and the stockist is not entitled to store his goods elsewhere unless on his application, it is endorsed on the licence by appropriate authority. These are the statutory conditions of the permit to be complied with by the parties and any contravention of the provisions of the order, under Section 6 of the Cement Control Act, will entail penal consequences on the parties to the transaction. ( 25 ) IN this situation in regard to impugned transactions covered by the permits like those of Annexure 'a' to the petition, there is no scope for any mutual assent between the parties and no room is left to them for any freedom of action relating them. Every aspect of the transaction is wholly and completely by the statutory restrictions and the parties are not entitled to make any relaxations or departure except by making themselves liable for penal consequences amounting to imprisonment or fine or both. The fact that the stockist by agreeing to be the holder of licence, is to be deemed as agreeing to work under restrictions, is not that consensus or mutuality which is necessary and essential between a seller or purchaser in a sale. The fact that the stockist by agreeing to be the holder of licence, is to be deemed as agreeing to work under restrictions, is not that consensus or mutuality which is necessary and essential between a seller or purchaser in a sale. It has been said in the judgment of the sale tax authority, annexure 'b' to the petition, that the imposition of loading charges by stockist and time for delivery of cement implies a freedom of contract as such matters are to be fixed by mutual assent. It however appears that under the terms of the permit, the allottee purchaser on deposit of the price specified for delivery of the materials becomes entitled and is required to take delivery of the cement obviously from the place of storage mentioned in the licence and the transaction becomes complete at that point. Loading from godown and dispatch to destination are thus no integral part of the transaction and though there may be some arrangement by mutual agreement regarding loading and dispatch, they are outside the transaction of supply under the Act and its order. In the premises I am of opinion that the supplies of cement under permit issued under Cement Control Act and its order like the specimen permits annexed to the petition as Annexure 'a' series, are not sales under the Sales Tax Act and accordingly no sales tax is payable in respect thereof. The rule accordingly succeeds and is made absolute. Let a writ in the nature of mandamus issue restraining the respondents from imposing any Sales tax on transactions based on permits as per specimens annexed to the petition and marked 'a' to the petition issued under the West Bengal Cement Control Act, 1948 and Order No. 10333 D. C. S. dated 18th August, 1948. Mr. Datta appearing for the State prays for stay of the operation of the order. There will be a stay of operation of the order for a period of six weeks. The petitioner however will not be required to put in security in pursuance of the order passed earlier in this rule. Rule succeeds.