JUDGMENT K.C. Agarwal, J. - This writ petition has been filed by Shiv Shanker Lal Gupta, who is managing partner of Chhibra Mau Cold Storage, District Farrukhabad for Mandamus directing the Municipal Board, Chhibramau not to realise control from the cold storage aforesaid. 2. The Petitioner alleged that he purchased the cold storage in the year 1967 and extended the same by providing new chambers. His case -was that the cold storage had been built on plot No. 380 entire area of which is beyond the territorial limit of Municipal Board. The cold storage, according to the Petitioner, is situated in village Deovarampur, Pargana and Tahsil Chhibra Mau, District Farrukhabad and this village is not a part of the Municipal Board. The second point raised in the writ petition was that as potato was being brought for being kept in the cold storage while did not amount either sale, use or consumption, the Octroi duty could not be levied on it. 3. In the counter affidavit the allegation that the cold storage was not situated within the Municipal limits of Chhibra Mau has been denied. It has been averred that the relevant area comprises in village Deovarampur which is within the Municipal limits of Chhibra Mau. The Municipal Board has also stated that potato is brought within the Municipal limits for use, sale and consumption and as such Octroi was levy able. 4. The first question that is required to be considered is about the situation of the cold storage. It is beyond the territorial limit of Chhibra Mau Municipal Board there can be no denying that Octroi would not be livable. The Counter affidavit has denied these facts. In the counter affidavit a Photostat copy of the map and extract of Khatauni of the year 1387-F to 1392-F are attached showing that the plot in question is within the Municipal limits. To establish this point the contesting Municipal Board has also stated that Chhibra Mau Municipal Board was not imposing water tax and house tax on the cold storage. 5. On the materials placed before us it is not possible to hold that the cold storage is beyond the territorial limits of Chhibra Mau Municipal Board. 6. By Section 128 of the U.P. Municipalities Act, 1916 the State Legislature provides for imposition of various types of taxes and other levy. 5. On the materials placed before us it is not possible to hold that the cold storage is beyond the territorial limits of Chhibra Mau Municipal Board. 6. By Section 128 of the U.P. Municipalities Act, 1916 the State Legislature provides for imposition of various types of taxes and other levy. Clause (viii) which is relevant for our purposes is mentioned below: 128. Taxes which may be imposed (i) Subject to any general rules or special order of the State Government in this behalf, the taxes which a board may impose in a whole or part of Municipality are: (viii) An octroi on goods, animals brought within the Municipality for consumption, use or sale therein. 7. The octroi, therefore, can be levied on goods brought within the Municipal limits for consumption, use for sale therein. 8. In this case the fact that potato is kept in the cold storage is not being denied. The contention of the Petitioner, however, is that since potato is brought to the cold storage for a limited period and is not subjected to any consumption, use or sale, no octroi could be levied on it. The Petitioner has, however, after having admitted that potato is brought from outside and is kept in the cold storage which according to our finding is situated within the Municipal limits, does not say as to what happens to the potato brought in. In a cold storage potato is kept for the purposes of cooling, freezing so that it is not destroyed on account of heat. In Burma Shell Oil Storage and Distributing Co. of India Ltd v. Belgaum Borough Municipality, Belgaum AIR 1963 SC 906 the nature of octroi duty came to be considered by the Supreme Court. The Hon'ble Supreme Court held in this case that so long as the goods are brought inside the area for sale within the area to an ultimate consumer, it makes no difference that the consumer does not consume them in the area but takes them out for consumption elsewhere. In this case the Petitioner has not been able to prove that the potato brought in is re-exported out of area. In the absence of any case of the Petitioner that potato is re-exported it is not possible to hold that octroi was not payable on potato which is brought in u/s 128 of the U.P. Municipalsties Act. 9. In this case the Petitioner has not been able to prove that the potato brought in is re-exported out of area. In the absence of any case of the Petitioner that potato is re-exported it is not possible to hold that octroi was not payable on potato which is brought in u/s 128 of the U.P. Municipalsties Act. 9. In Satna Cement v. Nagar Mahapalika, 1985 AWC 165 the facts were different. The Petitioner of that case was engaged in the business of manufacture and sale of cement. It has its factory at Satna in the State of Madhya Pradesh and it has its office in Banshidhar Market, Allahabad which falls within the limits of Nagar Mahapalika, Allahabad. At this office, the Petitioner used to enter contract of sale of cement of customers both within the limits of Nagar Mahapalika as well as beyond it. It had two go downs, one of which is in Mohalla Himmatganj within the Nagar Mahapalika, Allahabad and the another in village Dubrajpur at COD road outside the limits of Nagar Mahapalika. For bringing cement by road from Petitioner's factory at Satna to its go down in Mohalla Himmatganj aswell as to village Dubrajpur the trucks were required to enter the limits of Nagar Mahapalika through an octroi barrier. In these circumstances, the question of payability of octroi duty on the goods brought within the Nagar Mahapalika, Allahabad came to consideration. As regards the cement which was stored in village Dubrajpur the Petitioner's case was that soon after the cement entering into octroi barrier it used to be taken out of the limits of Allahabad Nagar Mahapalika and as such no duty was payable on the cement taken out to village Dubrajpur. The High Court upheld the contention of the Petitioner by holding that the Petitioner was not liable to pay octroi in regard to such cement which entered the limits of Nagar Mahapalika and after passing over an area within the said limits went out through another octroi barrier to village Dubrajpur. 10. In the instant case potato, brought within the limits of Chhibra Mau Municipal Board, is not taken out and as such the law laid down in this case will not help the Petitioner. 10. In the instant case potato, brought within the limits of Chhibra Mau Municipal Board, is not taken out and as such the law laid down in this case will not help the Petitioner. On the basis of extremely vague assertion that potato was not subjected to any consumption, use or sale with no averment that it used to be taken out, it is not possible to apply the ratio of the case relied upon. The potato could be regarded as having been brought in for purposes of consumption when a person brings it for his own use or consumption or puts them in the way of others who are to use and consume and further goods brought inside the area for sale, octroi becomes payable. There is no reliable averment that potato kept in the cold storage used to be taken out not in pursuance of any Contract. The contents of the contract are not necessarily confined to those that appear on its case. The .parties may have negotiated against a background of commercial usage whose implications are known to the parties. No doubt, there is - a difference between sale and agreement of sale. Unless agreed otherwise, the goods remain at the seller's risk until the property therein is transferred to the buyer, but if the property is transferred to the buyer, the goods are at the buyer's risk whether delivery has been made or not. 11. It has been said by the Supreme Court in Burmah Shell Co. (supra) that the act of sale is merely the means for putting the goods in the way of use and consumption. It is a stage the ultimate destination of the goods being used and consumption. In the instant case, even if it was assumed that the entire quantity used to be taken out, which is not possible, it is not established that it was not in pursuance of sale. 12. The writ petition is dismissed with costs.