JUDGMENT : DP. Wadhwa, C.J.-In this batch of 40 cases, the following questions have been referred to this Court for its opinion by the Tribunal constituted under section 34A of the Bihar Sales Tax Act, 1959 (since repealed and replaced by the Bihar Finance Act, 1981) (for short 'the State Act'). 1. Whether, on the facts and in the circumstances of the case, the Commercial Taxes Tribunal was justified. in law, holding that the sales in question were sales in the course of inter-State trade or commerce within the meaning of the Central Sales Tax Act, and not intra-State sales ? 2. Whether, on the facts and in the circumstances of this case, the Tribunal is right in taking the view that the assessee is not liable to any Central Sales Tax in view of the provisions of section 8(2A) of Central Sales Tax Act ? . 2. For the purpose of our opinion on these two questions we note that the principal arguments were addressed by the parties in Taxation Case No. 245 of 1981. 3. The asses sees in all these cases, however, deal in hard coke and their business premises are within the State of Bihar. They are registered dealers. Sales of hard coke have been made to various purchasers who hail from outside the State of Bihar and these sales have been effected at the business premises of the assessees. The purchases had been made by the representatives/employees of the purchasers who had come to the business premises of the assessees. They purchased the goods and made payment of the price in cash for which they were granted cash memos. The purchasers brought their trucks and registered number of those trucks were duly noted in the cash memos. After the purchasers had loaded the goods on their respective trucks, they were given permits in Form XXVIII-B prescribed under rule 31 of the Bihar Sales Tax Rules, 1959 framed under the Act. Tile goods were thus transported accompanied by those road permits and cash memos. The trucks crossed various check posts in-• eluding the last check posts on the bORDER :of State of Bihar to the other States where the purchasers were located. In the road permit issued in Form XXVIII-B, the assessees have been maintain as the consignors and the purchasers as the consignees. The trucks crossed various check posts in-• eluding the last check posts on the bORDER :of State of Bihar to the other States where the purchasers were located. In the road permit issued in Form XXVIII-B, the assessees have been maintain as the consignors and the purchasers as the consignees. These permits also mentioned the destination to which the consignments were ultimately to be carried and those places were in the other States. Hard coke comes within the term "goods" as defined under section 2(d) of the Central Sales Tax act (for short 'C.S.T. Act'). The principal question is if these sales are intra-State or inter-State. It is the stand of the Revenue that these are inter-State sales and liable to sales tax under the C.S.T. Act. 4. It may be stated that the Commercial Tax Officer held the sales to be inter- State sales. However, on appeal by the assessees the Deputy Commissioner of Sales Tax allowed the appeal holding that these were intestate sales and were• not liable to sales tax under the C.S.T. Act. He, however, did not give any opinion as to whether these sales were exempt under sub-section (2A) of section 8 of the C.S.T. Act. On further appeal by the Revenue the Tribunal held the sales to be inter-State sales but at .the same time held that the assessees were not liable to Central sales tax in view of section 8(2A) of the C.S.T. Act. . 5. Further question is about the applicability of sub-section (2A) of section 8 of the C.S.T. Act to these sales. whether these could be exempt from payment of any sales tax under the C.S.T. Act. 6. In ORDER :to answer these questions so raised we may refer to the relevant provisions of law. 7. Sections 41 and 42 of the State Act, 1959 are as under :- "41. Establishment of check pasts.-(1) The State Government may, by notification, set up and erect, in such manner as may be prescribed, check posts and barriers at any place in the State with a view to preventing evasion of tax payable under this Act. (2) Every person transporting such goods as the State Government may, by notification, specify shall. Establishment of check pasts.-(1) The State Government may, by notification, set up and erect, in such manner as may be prescribed, check posts and barriers at any place in the State with a view to preventing evasion of tax payable under this Act. (2) Every person transporting such goods as the State Government may, by notification, specify shall. at any check post or barrier, referred to in sub-section (1) and before crossing such check post or barrier, file before such authority or officer as may be authorised by the State Government in this behalf, a correct and complete declaration in such form and in such manner as may be prescribed. (3) The authority of officer authorised by the State Government under sub-section (2) may, for the purpose of satisfying himself that the provisions of sub-section (2) are not being con, trav0ned, and subject to such restriction as may be prescribed, intercept, detain and search any road vehicle or river craft which may be suspected of being used for contravening such provisions. 42. Restrictions on movement.-(1) No person shall transport from any railway station, steamer station, airport, post office or any other place whether of similar nature or otherwise notified in this behalf by the State Government, any consignment of such goods, exceeding such quantity, as may be specified in the notification, except in accordance with such conditions as may be prescribed and such conditions shall be made with a view to ensuring that there is no evasion of tax payable under this Act. (2) Any authority or officer who may be authorised by the State Government in this behalf, may, for the purpose of verifying whether any goods are being transported in contravention of the provisions of sub-section (1) and subject to such restrictions as may be prescribed, intercept, detain and search any road vehicle or river craft or any load carried by persons." 8. Sub-section (1 A) of rule 31 of the Rules under the Bihar Sales Tax Rules, 1959 (for short 'the State Rules') provides for transportation of goods. Sub-section (1 A) of rule 31 of the Rules under the Bihar Sales Tax Rules, 1959 (for short 'the State Rules') provides for transportation of goods. Under this sub-rule, Form XXVIII-B in the first instance is to be issued by the authority under the State Act to a dealer who is in possession of valid certificate of registration in Form V when the authority is satisfied whether any consignment of goods is to be transported by or on behalf of such dealer who shall fill in all the columns of the form so supplied to him. Then further procedure is prescribed under this sub-rule as to how many copies of the form are to be prepared by the dealer and how these are to be, utilised and when the conditions of the sub-rule are fulfilled, the consignment with a copy of Form XXVIIIB could be transported without undue restriction, except for normal checking and inspection en route. 9. Form XXVIII-B under rule 31 of the Bihar Sales Tax Rules, 1959 is as follows :- "FORM XXVIII-B Form of permit. (See rule 31 of the Bihar Sales Tax Rules, 1959) Counterfoil not transferable. (to be retained by the dealer) Duplicate-not transferable. (To be returned to the dealer or the person incharge of the goods by the check-post authority/to be appended to railway receipt or other document of delivery in case of transport from a notified railway station or other place). ORIGINAL-NOT TRANSFERABLE. (To be retained by the check-post authority to be sent to the appropriate authority in case of transport from a notified railway station or other place). Serial No. (To be filled in by the permit-holder before transport of goods). 1. Name of dealer to whom the permit is granted with registration certificate number.... 2. Name and address of consignor...... 3. Name and address of consignee........ 4. Place of despatch ........ 5. Destination .......... 6. Name of notified railway station/ other place, from where delivery is to be taken....... 7. Number and date- (i) Railway receipt ..:........... (ii) Other document .............. 8. Description of consignment Name of goods Value Quantity 9. Seller's invoice / forwarding note number and date ......... 10. Mode of transport (vehicle no.)....... 11. We hereby declare that the above statements are correct and complete to the best of my/our knowledge and belief. Signature of dealer/declared Manager. Date ........." 10. (ii) Other document .............. 8. Description of consignment Name of goods Value Quantity 9. Seller's invoice / forwarding note number and date ......... 10. Mode of transport (vehicle no.)....... 11. We hereby declare that the above statements are correct and complete to the best of my/our knowledge and belief. Signature of dealer/declared Manager. Date ........." 10. Section 3 and Section 8(2-A), in relevant part, of the C.S.T. Act run thus : "3. When is a sale or purchase of goods said to take place in the course of inter-State trade or commerce.-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; or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another. Explanation 1.-Where goods are delivered to a carrier or other bailee for transmission, the movement of the goods shall, for the purpose of cl.(b), be deemed to commence at the time of such, delivery and terminate at the time when delivery is taken from such carrier or bailee. Explanation 2.-Where the movement of goods commences and terminates in the same State it shall not be deemed to be a movement of goods from one State to another by reason merely of the fact that in the course of such movement the goods pass through the territory of any other State." "Section 8(2-A). Notwithstanding anything contained in sub-section (1-A) of section 6 or sub-section (1) or Cl. (b) of sub-section (2) of this section, the tax payable under this Act by a dealer on his turnover in so far as the turnover or any part thereof relates to the sale of any goods, the sale or, as the case may be, the purchase of which is, under the sales-tax law or the appropriate State, exempt from tax generally or subject to tax generally at a rate which is lower than four per cent whether called a tax or fee or by any other name, shall be nil or, as the case may be, shall be calculated at the lower rate. Explanation.-For the purpose of this sub-section a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales-tax law 'of the appropriate State if under that law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods." 11. Thus, to repeat, the question which falls for consideration is if the sale or purchase of the goods in question occasioned free movement from the State of Bihar to another State. If so, the sale or purchase of the goods shall be so' deemed to take place in the course of inter-State trade or commerce. In the course of arguments we have been referred to a host of authority but we do not think it is necessary to refer to all of them as that will unnecessary lengthen the JUDGMENT :. It will suffice if we refer in somewhat detail to the decisions of the Supreme Court and of this Court laying down the principle as to when it could be said that sale or purchase of goods is in course of inter-State trade or commerce and to see on the facts of the present case if such a sale or purchase had occasioned the movement of goods from the State of Bihar to another State. 12. In the State of Bihar vs. Tata Engineering and Locomotive Co. Ltd. (A.I.R 1971 S.C. 477) the assessee was carrying on the business of manufacturing and selling trucks, bus chassis and spare parts to its appointed dealers. Agreements entered into between the assessee and dealers showed that each dealer was assigned a territory in which alone the dealer could sell. The dealers had to place indents, pay the price of goods to be purchased and obtain delivery ORDER :s from the Bombay office of the assessee. In pursuance of the delivery ORDER :s the trucks etc. were delivered in Bihar to be taken to the territories assigned to them for sale there. If the dealers failed to abide by the term requiring them to move the goods outside the State of Bihar they would have committed breach of their contracts. In pursuance of the delivery ORDER :s the trucks etc. were delivered in Bihar to be taken to the territories assigned to them for sale there. If the dealers failed to abide by the term requiring them to move the goods outside the State of Bihar they would have committed breach of their contracts. The question was whether the turnover relating to the sales made by the assessee to its dealers for sale by them in their respective territories outside the State of Bihar was exempt from liability to pay sales tax under the Bihar Sales Tax Act, on the ground that the sales took place In the course of inter-State trade or commerce. It was held that where under the terms of a contract of sale, the buyer is required, as a necessary incident of the contract, to remove the goods from the State in which he purchased the goods to another State and when the goods are so removed, the sale must be considered as a sale in the course of inter-State trade or commerce. In the Tata Engineering & Locomotive Co. case the ratio was that under the contracts of sale the purchasers were required to remove the goods from the State of Bihar to other States. 13. Same view would appear to have been taken by the Supreme Court in the Co-operative Sugar (Chittur) Ltd. VS. State of Tamil Nadu (A.I.R. 1994 S.C. 1456) which had been strongly relied upon by the learned Advocate General. In this case the appellant was having a Sugar factory at Chittur in the State of Kerala where sufficient quantity of sugarcane was not available. The appellant and the State of Kerala approached the State of Tamil Nadu for supply for sugarcane for the factory which was agreed to and the Government of Tamil Nadu issued an ORDER :by virtue of which the appellant was permitted to draw sugarcane from certain areas in Coimbatore and Pollachi taluks in Tamil Nadu subject to condition of payment of sales tax on the cane supplies made from the State of Tamil Nadu and take the same to the State of Kerala. The Sales Tax authorities of Tamil Nadu held the sale of sugarcane to have taken place within their State and accordingly levied the purchase tax under the provisions of the Tamil Nadu General Sales Tax Act. The Sales Tax authorities of Tamil Nadu held the sale of sugarcane to have taken place within their State and accordingly levied the purchase tax under the provisions of the Tamil Nadu General Sales Tax Act. This was disputed by the appellant contending that it was an interstate sale within the meaning of clause (a) of Section 3 of the C.S.T. Act and, therefore, was not exigible to tax under the State law. The Supreme Court held that it was clear that purchases made by the appellant were inter-State purchases. The appellant was permitted to purchase sugarcane in the areas in Tamil Nadu only for the purpose of transporting to its factory in Kerala and whatever was purchased was transported to Kerala. The Court said that it must be held that the movement of goods was occasioned by the sale by the farmers or purchase to the appellant, whichever way one looked at it. The Court was of the view that movement of the sugarcane from Tamil Nadu to Kerala was the incident of, and was inextricably connected with the sale/ purchase and that the purchase and transport were parts of one transaction and that they could not be dissociated in the case. The Court further observed that there was no break between the purchase and the movement of the goods to other State, viz., Kerala and that it was immaterial, in such a case, whether the sale/purchase took place within Tamil Nadu or within Kerala and that so long as the movement of goods was an incident of the sale/purchase it amounted to an inter-State sale/purchase. The Court also held that it was not also necessary that the contract of sale must expressly provide for movement of goods and that it was sufficient if the movement of goods was implicit in the sale. 14. It will be seen that in the Tata Engineering and Locomotive Co.'s and in Co-operative Sugar (Chittur)'s cases the contract or the statutory ORDER :provided for movement of goods from one State to another. In Co-operative Sugar (Chittur) Ltd's case, the Supreme Court referred to the following observations from its earlier case in Commissioner of Sales Tax, U.P. vs. Bakhawar lal Kailash Chand (87 STC 196) as under :- "...According to clause (a) of S.3, an inter-State sale or purchase is one which occasions the movement of goods from one State to another. In Co-operative Sugar (Chittur) Ltd's case, the Supreme Court referred to the following observations from its earlier case in Commissioner of Sales Tax, U.P. vs. Bakhawar lal Kailash Chand (87 STC 196) as under :- "...According to clause (a) of S.3, an inter-State sale or purchase is one which occasions the movement of goods from one State to another. In other words, the movement of goods from one State to another must be the necessary incident-the necessary consequence of sale or purchase. A case of cause and effect-the cause being the sale/purchase and the effect being the movement of the goods to another State... It is immaterial whether a completed sale precedes the movement of goods or follows the movement of goods, or for that matter, takes place while the goods are in transit. What is important is that the movement of goods and the sale must be inseparably connected... Sri Sehgal is equally not right in saying that movement of goods from the State of U.P. to other State(s) is immaterial and that the U.P. Legislature is competent to tax each and every purchase that takes place within that State. Ordinarily, it is so, but where a sale• or purchase, though effected within the State of U.P. occasions the movement of goods sold/purchased thereunder from the State of U.P. to other States, it becomes an inter-State sale. Such a sale cannot be taxed by the Legislature of Uttar Pradesh. It is taxable only under the Central Sales tax. Situation could have been different if the respondent-dealer had purchased the goods on behalf of the ex-UP. principals in the first instance and thereafter in pursuance of subsequent instructions despatched the goods. In such an event the instructions to despatch the goods are independent of the instructions to purchase, There is a break between the purchase and despatch of goods. It would not be a inter-State purchase. An out-State principal may first instruct his commission agent .within the State of U.P. to purchase the goods on his behalf and to await his further instructions. Depending upon the market conditions and other circumstances. the ex-State principal may instruct his agent in the State either to sell the goods within the State or to despatch the goods beyond the State. Depending upon the market conditions and other circumstances. the ex-State principal may instruct his agent in the State either to sell the goods within the State or to despatch the goods beyond the State. If such were the case, Sri Sehgal would have been right in saying that the State of U.P. was competent to tax the purchase by the respondent dealer. But that is not the case here on the facts found by the appropriate authorities. " 15. It was submitted by Mr. Harish Salve. learned counsel for' the assessee with reference to clause (2) of Article 286 of the Constitution that Parliament had made law being C.S.T. Act formulating principles for determining when a sale or purchase of goods would take place outside the State and in this connection he referred to clause (a) of section 3 of the C.S.T. Act. Mr. Salve said that Explanation to section 3 would apply only with reference to clause (b) of section 3. His submission was that the sale of goods shall be deemed to take place in the course of inter-State trade or commerce if there was movement of goods in pursuance to covenant and that movement of goods as such could not be integral part of the sale to say that sale had taken place in the course of inter-State trade or commerce. Mr. Salve said that in the present case the assessee had nothing to do with the movement of goods. A sale for all intent and purposes had been concluded and goods delivered to the buyer at the premises of the seller in the State. It was for the buyer to take out the goods outside the State by making his own arrangements for transportation of goods, but the seller was in' no way concerned with it and had in fact washed off his hands after taking the price and delivery of the goods to the buyer at the premises of the seller. His further submission was that issue of Form XXVIIIB did not in any way change the position in law on the facts of the case inasmuch as Form XXVIII-B was no part of the C.S.T. Act or any rules framed thereunder. This form was issued under sections 41 and 42 of the local Sales Tax Act and it was purely on account of anti-evasion measure under that law. This form was issued under sections 41 and 42 of the local Sales Tax Act and it was purely on account of anti-evasion measure under that law. Issue of Form XXVIII-B did not change the nature of the sale which was intra-State. Mr. Salve said that it could be under some mistaken belief that such a Form 'XXVIII-B was issued by the seller. In support of his submission Mr. Salve referred to a decision of the Supreme Court in Balabhagas Huiaschand and another vs. State of Orissa (37 STC 207 : AIR 1976 S.C. 207). In that case the appellant was a firm dealing in selling and buying jute having its head office at Calcutta. It entered into a contract of sale with certain firms in Calcutta by which the appellant agreed to sell raw jute to the buyers. At the time when the contract was entered into, raw jute was not in existence as it was being grown in the State of Orissa. After the goods were ready the appellant baa ked the goods in bags in the names of buyers from railway stations in Orissa to the railway siding at Calcutta. After the goods had arrived at Calcutta the buyers checked the same found those to be of the specifications as per the terms of the contract and accepted the same. The High Court held that the sale were inter-State sales and thus liable to be taxed under clause (a) of section 3 of the C.S.T. Act. On appeal the Supreme Court held that even though the sale took place at Calcutta, since the movement of goods preceded the sale in pursuance of the contract 'of sale, which contained a clear stipulation that the goods were to move from Orissa to Calcutta, the movement of goods was occasioned by the sale itself and it was, therefore, taxable under section 3(a) of the C.S.T. Act. The Court analysed the provisions of section 3 of the C.S.T. Act and section 4 of the Sale of Goods Act. it also analysed the definition of sale as given in section 2(g) of the C.S.T. Act. The court observed that section 3 of the C.S.T. Act consisted of two clauses, I.e., clauses (a) and (b) and that the court in that case was concerned only with clause (a). it also analysed the definition of sale as given in section 2(g) of the C.S.T. Act. The court observed that section 3 of the C.S.T. Act consisted of two clauses, I.e., clauses (a) and (b) and that the court in that case was concerned only with clause (a). Then analysing clause (a) the court said that it would appear that before section 3 could apply, the fallowing facts must be established; (i) that there is a sale or purchase of goods; and (ii) that the sale accessions the movement of goods from one State to another. The court examined certain contingencies as to when section 3(a) would apply. Mr.Salve said Case No. III, as stated by the Court in that JUDGMENT :,. would be applicable to his case. This Case No. III is as under :- "Case No. III.-B, a purchaser in State Y, comes to State X and purchases goods and pays the price thereof. After having purchased the goods he then books the goods from State X to State Y in his own name. This is also a case where the sale is purely an internal sale having taken place in State X and the movement of goods is not occasioned by the sale but takes place after the property is purchases. by B and becomes his property." 16. Another decision of the Supreme court may also be noticed. It is Union of India vs. M/s K.G. Khosla and Co. Ltd. (A.I.R. 1979 S.C. 1160). In this case the company was having its head office in Delhi and its factory at Faridabad in the State of. Haryana. The company contended that except for manufacturing of goods at Faridabad factory, all its activities including those of booking of ORDER :s. sales, despatching of goods, billing and receiving of sale price were being done by and through the head office in Delhi and that no sales were effected by or from its factory. The Court found that the goods were manufactured by the company in its factory at Faridabad in pursuance of specific ORDER :s received by its head office at Delhi, contracts of sale were made at Delhi and in pursuance of those contracts, goods were manufactured at Faridabad according to specifications mentioned in the contracts. The Court found that the goods were manufactured by the company in its factory at Faridabad in pursuance of specific ORDER :s received by its head office at Delhi, contracts of sale were made at Delhi and in pursuance of those contracts, goods were manufactured at Faridabad according to specifications mentioned in the contracts. This, the Court said, was not that type of case in which goods were manufactured in the general course of business for being sold as and when offers were received by the manufacturer for their purchase. Contracts of sale were finalised in that case at Delhi and specific goods were manufactured at Faridabad in pursuance of those contracts. These were "future goods" within the meaning of section 2(6) of the Sale of Goods Act, 1930. After the goods were manufactured to agreed specifications, they were despatched to the head office at Delhi for being forwarded to the respective customers at whose instance and pursuant to the contracts with whom the goods were manufactured. The goods could as well had been despatched to the respective customers directly from Faridabad but those were first brought at the first instance at Delhi as a matter of convenience since there were better godown and rail facilities at Delhi as compared with Faridabad. The despatch of goods to Delhi was but a convenient mode of securing the performance of contracts made at Delhi. The Court observed that goods conforming to agreed specification having been manufactured at Faridabad, the contracts of sale could be performed by the company only by the movement of goods from Faridabad with intention of delivering them to the purchasers. Thus, the movement of goods was occasioned from Faridabad to Delhi as a result or incident of contracts of sale made in Delhi. The Court said that it was not true to say that for the purpose of section 3(a) of the C.S.T. Act it was necessary that the contract of sale must itself provide for and cause the movement of goods and that movement of goods must be occasioned specifically in accordance with the terms of the contract of sale. The Court referred to its decision in Tata Engineering and locomotive CO. VS. The Assistant Commissioner of Commercial Taxes (A.I.R. 1970 S.C. 1281) which was relied upon by the Union of India to contend that sales tax was rightly demanded by the Union Territory of Delhi. The Court referred to its decision in Tata Engineering and locomotive CO. VS. The Assistant Commissioner of Commercial Taxes (A.I.R. 1970 S.C. 1281) which was relied upon by the Union of India to contend that sales tax was rightly demanded by the Union Territory of Delhi. In this Tata Engineering and Locomotive Co. Ltd.'s case the company carried on the business of manufacturing trucks in Jamshedpur in the State of Bihar. The sales office of the company was in Bombay which used to instruct the Jamshedpur factory to transfer stocks of vehicles to its stockyards in various States after taking into account the production schedule and requirements of customers in different States. The stocks available in the stockyards were distributed from time to time to dealers. The transfer of the vehicles from the factory to the various stockyards was a continuous process and was not related to the requirement of any particular customer. It was the stockyard in charge who appropriated the required number of vehicles to the contract of sale out of the vehicles to any purchaser or to transfer the vehicles from the stockyard in one State to a stockyard in another State. The Court held in the case that it was not possible to comprehend how in that situation it could be held that the movement of vehicles from the works to the stockyards was occasioned by any covenant or incident of the contract of sale". In that case the Court after referring to certain decisions observed that "the principle admits of no doubt, according to the decisions of this court, that the movement of goods 'must be the result of a covenant or incident of the contract of sale". The court contrasted this decision with another decision of the same company (A.I.R. 1971 S.C. 477) which we have referred to above. Thus, the question which arose for determination in the case of M/s K.G. Khosla and Co.'s case was whether the sales made by the company were made at Faridabad in course of inter-State trade as contended by the State of Haryana or whether they were intra-State sales effected within the Union Territory of Delhi, as contended by the Union of India. The Court held in favour of State of Haryana and said as under :- "The decisions to which we have referred above show that in ORDER :that a sale may be regarded as an interstate sale, it is Immaterial whether the property in the goods passes in one State or another. The question as regards the nature of the said, that is, whether it is an inter-State sale or an intra-State sale, does not depend upon the circumstances as to in which State the property in the goods passes. It may pass in either State and yet the sale can be an inter-State sale." 17. The other decisions which have been relied upon by Mr. Salve are (1) Ashok Leyland Ltd. Ennore vs. The State of Madras (8 STC 210-Madras), (2) Bapputty and am. VS. The Government of Kerala (12 STC 722. Kerala), (3) Asbestos Cement Ltd., Podanur vs. Government of Tamil Nadu (30 STC 251-Madras). (4) Delhi Cloth and General Mills Co. Ltd. vs. Commissioner of Sales tax, New Delhi (40 STC 351-Delhi), (5) The State of Mysore vs. Guduthur Thimmappa and son & anr. (19 STC 35-SC), (6) Commissioner of Sales Tax, M.P. vs. Nathani Brothers, Aaipur (21 STC 465-M.P.) and (7) Commissioner of Sales Tax VS. Essex Farms (P) Ltd. (85 STC 81-Delhi). 18. Mr. Salve said that Form XXVIIIB did not matter and it could not make a sale inter-State when it was intra-State. Form XXVIII-B is provided under the rules framed under the State Act and the sole purpose of prescribing this form would appear to be to check evasion of sales tax under that law. Mr. Salve said that when whole of the transaction was completed at the premises of the assessee in the State of Bihar and he was not concerned with the movement of goods to any other State, the issue of Form XXVIII-B was irrelevant. It was also submission of Mr.Salve that in any case the issue of Form XXVIII-B could not operate as an estoppel against the assessee to contend that it was intra-State sale. There can not be any principle of estoppel which could be invoked in taxation matters. It is legal proposition to be examined as to which of the two laws would apply to the sale in the present case, whether it is the Bihar Sales Tax Act, 1959 or the Central Sales Act. There can not be any principle of estoppel which could be invoked in taxation matters. It is legal proposition to be examined as to which of the two laws would apply to the sale in the present case, whether it is the Bihar Sales Tax Act, 1959 or the Central Sales Act. This could not be decided merely on the basis of Form XXVIII-B on a plea that the assessee would be estopped from contending that it was inter-State sale when. in fact, it was intra-State one on his own showing by issuing the form. In support of this submission of his Mr. Salve referred to two decisions of the Supreme Court in Dunlop India Ltd. vs. Union of India (A.I.R. 1977 S.C. 597) and Basheshwar Nath vs. Income Tax Commissioner (A.I.R. 1959 S.C. 149). Mr. Salve also said that by issuing Form XXVIII-B no particular advantage could be said to have been gained by the assessee. 19. On the second question about the applicability of section 8(2-A) of the C.S.T Act we may quote the following passages from the statement of case as formulated by the Tribunal :- "9. After holding the sales in question to be inter-State sales. the Tribunal considered the question regarding non-liability of the assessees for payment of sales tax. These assessees are duly registered as Small Scale Industrial Units in the Industries Department of the Government of Bihar as also under the appropriate section of the Bihar Sales Tax Act, 1959. The State Government, in sub-section (3) of sec.4 exempted levy of both "General Sales Tax" and "Special Sales Tax" sales of finished products by the newly set up Small Scale Industries units at the first stage for a period of 5 years from the date of start of such industries by notification no. STGLE-1013/699424-F.T. dated 19th September, 1969 which remained in force upto 31.3.1974. The State Government issued another notification no. S.O. 351 dated the 14th March, 1974 to the same effect with certain procedural conditions which is to remain In force from 1st April, 1974 to 31st March. 1979. STGLE-1013/699424-F.T. dated 19th September, 1969 which remained in force upto 31.3.1974. The State Government issued another notification no. S.O. 351 dated the 14th March, 1974 to the same effect with certain procedural conditions which is to remain In force from 1st April, 1974 to 31st March. 1979. In view of the exemption granted under the aforesaid two notifications the cases in respect of payment of tax on the aforesaid inter-State sale which relate to periods ranging between 1973-74 to 1975-76 would seem to clearly fall under the provision of subsection (2A) of section 8 of the Central Act and its "Explanation". 10. The Tribunal, after having considered the provision of section 8(2A) of the Central Act and the aforesaid two notifications of the State Government, concluded that the exemption granted under them can well be treated to general without any restriction or condition and that there was nothing in them to read the existence of any circumstances or condition subject to which this exemption had been allowed so as to conclude that the exemption is not unqualified to sub-section (2A) of section 8 of the Central Act. In support of this view, the Tribunal relied upon the decision of Madhya Pradesh High Court In Commissioner of Sales Tax vs. Kapoor Dori Niwar & Co. (22 STC 152) as also that of the Allahabad High Court in Hindustan Safety Glass Works (P) Ltd. vs. The State of Uttar Pradesh (34 STC 209). Both these decisions have been referred to without any dissent, in the Supreme Court case i.e. Indian Aluminium Cables Ltd. and another vs. The State of Haryana (39 STC 108). 11. In the light of the above decisions, the facts of the case and the provisions of section 8(2A) of the Central Act along with the aforesaid two notifications of the State Government. this Tribunal in its ORDER :dated 5.5.1978 (Annexure F) held the assessee to be exempt from payment of Sales Tax in respect of the inter-State sales of goods in question for the periods concerned by the instant cases out of which revision case nos. 4-5/77, 18/77, 71/77 are disposed by its ORDER :dated 12.5.78 (Annexure G) and revision case nos. 104-105/78 by its ORDER :dated 30.6.78 (Annexure H) in terms of the decision dated 5.5.78 (Annexure F.)" 20. In Commissioner of Sales Tax, Jammu & Kashmir VS. 4-5/77, 18/77, 71/77 are disposed by its ORDER :dated 12.5.78 (Annexure G) and revision case nos. 104-105/78 by its ORDER :dated 30.6.78 (Annexure H) in terms of the decision dated 5.5.78 (Annexure F.)" 20. In Commissioner of Sales Tax, Jammu & Kashmir VS. Pine Chemical Ltd. & ors (96 STC 365-SC), the Supreme Court held that exemption from Central Sales Tax under section 8(2-A) of the C.S.T. Act of the sale or purchase of goods was available only where the sale or purchase of such goods was exempt "generally" under the State sales tax law. The Court must give due regard and attach due meaning to the expression "generally" in section 8(2-A) which expression has been defined in the Explanation thereto. The Court said that section 8(2-A) required specifically that such exemption must be a general exemption and not an exemption operative in specified circumstances or under specified conditions and general exemption meant that the goods were totally exempt from tax and that where exemption from taxation was conferred by conditions or in certain circumstances there was no exemption from tax generally. This decision of the Supreme Court was followed in a subsequent decision of the Court in Hindustan Paper Corporation Ltd. vs. State of Kerala (89 STC 473SC). In view of what has been said by the Tribunal in statement of case which we have quoted above and the law laid down by the Supreme Court, Mr. Salve, in all fairness. submitted that the answer to the second question has to be in negative. i.e., against the assessee and in favour of revenue. 21. That the provision of sections 41 and 42 of the State Act and rule 31 of the Rules framed under section 58 and Form XXVIII-B could not be co-related or referred to for the purpose of assessment under the C.S.T. Act, reference was made to a decision of the Supreme Court in Khemka and CO. VS. State of Maharashtra (A.I.R. 1975 S.C. 1549). In that case the question before the Court was if the assessee under the C.S.T. Act could be made liable for penalty under the provisions of the State Sales Tax Act. The State Act provided for penalty to be imposed for default in payment of taxes within the prescribed period. VS. State of Maharashtra (A.I.R. 1975 S.C. 1549). In that case the question before the Court was if the assessee under the C.S.T. Act could be made liable for penalty under the provisions of the State Sales Tax Act. The State Act provided for penalty to be imposed for default in payment of taxes within the prescribed period. The Court referred to the provisions of sub-section (2) of section 9 of the C.S.T. Act and said (by majority) that it could not be so as there was no provision in the C.S.T. Act for imposition of penalty and the provisions of the State Act could not be relied upon for the purpose. Section 9(2) of the C.S.T. Act provided that subject to the other provisions of the Act and the rules made thereunder. the authorities for the time being empowered to assess, reassess, collect and enforce payment of any tax under general sales-tax law of the appropriate State shall, on behalf of the Government of India, assess, re-assess, collect and enforce payment of tax, including any penalty, payable by a dealer under the C.S.T. Act as if the tax or penalty payable by such dealer was a tax under the general sales-tax law of the State. 22. It was submitted that in the present case, the test was if the movement of the goods in question was in pursuance of the contract. "Movement" refers to "delivery" but when delivery had already been made at the business premises of the assessee, question of any movement of goods did not arise. It was stressed that movement of goods had to be with reference to sale of the goods or agreement to sell. 23. Learned Advocate General submitted that movement of goods in the present case was part of the contract and that it was evident from the fact that Form XXVIII-B had been issued by the assessee which pointed to the sale being in course of inter-State trade. He said that movement of goods were implicit in the contract of sale which was signified by Form XXVIII-B. He said that it was unnecessary to contend that Form XXVIII-B was not necessary. It mayor may not be relevant, but in any case, it evidenced a link in the buyer and the seller for the movement of goods from the State of Bihar to another State. It mayor may not be relevant, but in any case, it evidenced a link in the buyer and the seller for the movement of goods from the State of Bihar to another State. He, however, admitted that Form XXVIII-B was necessary for passing the goods inside the State of Bihar. Learned Advocate General said that it was enough if It was shown that there was mutual understanding between the parties that goods had to move outside the State in pursuance of the agreement between them. In support of his submission, reference was also made to the decisions of the Supreme Court in the Co-operative Sugar (Chittur) Ltd., K.G. Khosla and Company Ltd. and Tata Engineering and locomotive Company cases, which we have discussed above, and M/s Sahney Steel & Press Works Ltd. vs. Commercial Tax Officer (A.I.R. 1985 S.C. 1754). In this case the appellant company was having its registered office and factory at Hyderabad with branches in various States. The registered office of the company at Hyderabad was registered as a dealer under the C.ST Act and the local sales tax Act. The company was engaged in the manufacture and sale of stampings and laminations made out of steel sheets utilised as raw materials for making electric motors transformers etc. The branches of the company were engaged in effecting sales promotion and liasion work. The company manufactured (a) standard goods according to the company's own designs and specifications and (b) non-standard goods according to the designs and specifications supplied by customers. In the course of its normal business the registered office despatched both standard and nonstandard goods manufactured at Hyderabad factory to the branches. Such transfers were made by the registered office to the branches at Bombay, Calcutta and Coimbatore of non-standard goods which formed the subject of dispute between the company and the sales tax authorities at. Hyderabad. It may be noted that the branch offices were also registered as dealers under the C.S.T. Act and the local Act• relevant in the State. The branches used to receive ORDER :s from customers within and from outside the respective States of the supply of nonstandard goods. The branch offices would in turn advise the registered office at Hyderabad to manufacture and despatch the goods. These were then manufactured at Hyderabad factory and thereafter despatched to the branches by way of transfer of stock. The branches used to receive ORDER :s from customers within and from outside the respective States of the supply of nonstandard goods. The branch offices would in turn advise the registered office at Hyderabad to manufacture and despatch the goods. These were then manufactured at Hyderabad factory and thereafter despatched to the branches by way of transfer of stock. At times intimation was also given by registered office to the customer concerned about the despatch of the goods to the destination indicated by him. Such goods were booked to "self" and sent by trucks. The goods received' by the branches were entered into stock accounts of the branches for ultimate delivery to the customers. On the goods reaching the branches, they were inspected by the customers and accepted by them where the customers were local parties, otherwise delivery was effected by despatching the goods to them. The branches raised bills and received the sale price. The branches furnished 'F' from to the registered office under section 6-A of the C.S.T. Act in the case of stock transfer to the branches. On these facts the Supreme Court held that the movement of goods from the very beginning from Hyderabad all the way until delivery was received by the buyer was an interstate movement. The Court said that the manufacture of the goods at Hyderabad factory and the movement thereafter from Hyderabad to the branch office outside the State was an incident of the contract entered into with the buyer, for it was intended that the same goods shall be delivered by the branch office to the buyer. The Court said that the commercial tax officer was right in holding that the sale transactions were inter-State sales inasmuch as they satisfied the terms of clause (a) of section 3 of the C.S.T. Act. 24. We may now refer to certain decisions of this Court which have been relied upon by the learned Advocate General. In Shankerjee Raut Gopalji Raut vs. State of Bihar (22 STC 241 : 1968 PLJR 241 -Patna), a Full Bench of this Court, the question was whether on the facts and in the circumstances of the case sales made to Nepal territory could be treated as sales in the course of export of goods out of the territory of India and as such exempt from levy of any sales tax. The answer was that there was no obligation to export either under the contract or in pursuance of a mutual understanding or agreement between the parties and sales could not Therefore, be exempt from sales tax. In Commissioner of Commercial Taxes vs. Shag Singh Milkha Singh (34 STC 535-patna) the Court said that to make a 'sale as one in the course of inter-State trade or commerce there must be an obligation, whether of the buyer or seller, to transport the goods outside the State and may arise by reason of statute, contract between the parties, or from mutual understanding or agreement between them or even from the nature of the transaction which linked the sale of such transportation. The stress of the learned Advocate General was that such an obligation might be imposed expressly under the contract itself or impliedly by a mutual understanding. With reference to this JUDGMENT : it was submitted that it was not necessary that in all cases there must be pieces of direct evidence showing such obligation and that such obligation were inferable from circumstantial evidence also. In Indian Explosives Limited vs. State of Bihar (89 STC 417 : 1995(1) PLJR 333 ), the assessee, a public limited company, having its registered office at Calcutta was engaged in the manufacture and sale of explosives having its factory at Gomia in the State of Bihar. It had its magazines spread over other States including those at Calcutta in the State of West Bengal. The sale of explosives were effected by the assessee both from its factory as well as from its magazines. During the relevant period the assessee head office at Calcutta entered into contract through its purchasers in West Bengal for sale of explosives. The contract did not have stipulation in respect of place from where explosives were to be supplied. Part of the explosives, however, had been supplied by transporting the same from the factory of the assessee in the State of Bihar to the place of business of the customers in the State of West Bengal. These were held to be inter-State sales. The Court said that it was wholly immaterial whether there was any contractual obligation on the part of the seller to move the goods from one State to another. These were held to be inter-State sales. The Court said that it was wholly immaterial whether there was any contractual obligation on the part of the seller to move the goods from one State to another. The decisive factor was the movement of goods from Bihar to West Bengal pursuant to and as an incident to contract for sale. The Court therefore, held that the transaction in question was necessarily inter-State sales within the meaning of section 3(a) of the C.S.T. Act. 25. Learned Advocate General therefore, submitted that there was a clear mutual understanding between the parties evidenced from Form XXVIII-B that the movement of the goods had to be from the State of Bihar to outside the State. He said that it was immaterial if the said was complete within the State of Bihar. but then the parties knew that the goods were meant for a place outside the State of Bihar and in pursuance thereto there was movement of goods and Form XXVIII-B evidenced that to facilitate the movement. 26. Under sub-section (2) of section 4 of the C.ST Act. a sale or purchase of goods shall be deemed to take place inside the State if the goods are within the State(a) in the case of specific or ascertained goods, at the time of the contract of sale is made; and (b) in the case of unascertained or future goods. at the time of their appropriation to the contract of sale by the seller or by the buyer whether assent of the other party is prior or subsequent to such appropriation. Explanation.-Where there is a single contract of sale or purchase of goods situated at more places than one, the provisions of this sub-section shall apply as if there were separate contract in respect of the goods at each of such places. 27. Learned Advocate General also relied upon the decision of the Supreme Court in Commissioner of Sales Tax, U.P. and others VS. Bakhtawar lal Kailash Chand Arthti and others : (1992) 87 STC 196 (SC) which we have already referred to above. 27. Learned Advocate General also relied upon the decision of the Supreme Court in Commissioner of Sales Tax, U.P. and others VS. Bakhtawar lal Kailash Chand Arthti and others : (1992) 87 STC 196 (SC) which we have already referred to above. In that case another point which may be of peripherial relevance to the present case also arose and that was that in one case, the respondent who, as commission agent, had purchased goods, on behalf of ex - U.P. principals and despatched the same outside the State, had issued certain form under the U.P. Sales Tax Act, 1948 and had paid the purchase tax under that law on the purchases made by him. After the decision of the Allahabad High Court in one of similar cases the respondent claimed refund of the tax on the ground that the purchases were, inter-State purchases and were not liable to tax under the U.P. Sales Tax Act. Section 3-8 of the Act provided that if a person issued a false or wrong certificate or declaration prescribed under the provisions of the Act and the rules thereunder to another person by reason of which a tax leviable under that Act on the transaction was not collected or collected at a lesser rate, then the person issuing such wrong or false certificate/declaration became liable to pay such tax. The case of the authorities was that when the respondent dealer represented to the authorities by issuing the form that the purchases effected by him were intra-State purchases liable to be taxed under the State law and thereby prevented the authorities from taxing the transactions under the C.S.T. Act, he must, therefore, be proceeded under section 3-B of the U.P. Act. The Court held that assuming that what the authorities said was true, even so the respondent-dealer could not be proceeded under section 3-B for the reason that the said section applied to a situation where the tax leviable under the State Act was evaded. It did not apply where the tax payable under the C.S.T. Act was evaded. The form which the respondent-dealer had thus issued under the U.P. Sales Tax Act was considered to be of no relevance. Perhaps, on this it could be said that Form XXVIII-B issued under the Bihar Sales Tax Act coL1ld not be of any relevance to consider the question raised in the present petitions before us. 28. The form which the respondent-dealer had thus issued under the U.P. Sales Tax Act was considered to be of no relevance. Perhaps, on this it could be said that Form XXVIII-B issued under the Bihar Sales Tax Act coL1ld not be of any relevance to consider the question raised in the present petitions before us. 28. We have examined the rival contentions, the State Act and the C.S.T. Act, the rules under the State' Act and various JUDGMENT :s cited at the Bar. The question that is posed before us is if the movement of goods is an incident of sale or contract of sale. No doubt, there has been sale and the goods sold have reached outside the State. but then the basic element to make it inter-State sale is missing and this movement of goods is not an incident of sale or contract of sale. Form XXVIII-B prescribed under a rule under the State Act is meant for a different purpose altogether. It is issued under the local State Act for transporting the goods beyond the check posts in the State and not for transporting them across the bORDER :of State. Issue of Form XXVIII-B, to our mind, cannot be a determining factor. It is not relevant and to take this into account would be an extraneous circumstance. It is undisputed that the buyers outside the State purchased the goods, paid the price took delivery at the business premises of the assessee and transported the goods themselves in the trucks engaged by them. It is quite apparent that sale was complete within the State of Bihar. To take out the goods outside the State it was not necessary for the assessee to issue Form XXVIII-B. Perhaps, best that could be said would be that it facilitated the movement of the goods in the State of Bihar but it was not meant for the purpose for crossing the bORDER :of the State. As noted above, this form is prescribed under the State Act and the rule framed thereunder to check evasion of sales tax under the State law. As noted above, this form is prescribed under the State Act and the rule framed thereunder to check evasion of sales tax under the State law. We do not think it was at all necessary for the assessee petitioner to issue Form XXVIII-B and it, therefore, cannot be linked with the contract of sale to hold that sale in question had taken place in the course of interstate trade as it had occasioned the movement of goods from the State of Bihar to another State. 29. Dividing line between inter-State sale and intra-State sale at times may appear to be rather blurred, but it is quite clear as in the present case. the contract in question did not necessarily involve the movement of goods outside the State nor even it was contemplated. Although there may be movement of goods preceding or succeeding a sale there cannot always be said that the movement was occasioned by sale. It has to be as a result of the covenant or incident of contract of sale. The mere occasion of movement of goods from one State to another is not in itself sufficient to constitute inter-State sale. That the seller knew that goods sold were to be taken out of the State by the purchaser is wholly irrelevant unless it was said that it was part of the sale transaction or under mutual understanding forming part of the contract. The petitioner here is not concerned either directly or indirectly for movement of the goods outside the State. It will appear to us that since the goods in question were exempt from payment of sales tax under the State Act, it is sought to be argued that they were exigible to tax under the C.S.T. Act. In the case of Tata Engineering and Locomotive Co. Ltd.'s case (A.I.R. 1971 S.C. 477) the argument of the State before the Supreme Court was to the contrary though not upheld by the Court. 30. We have already extracted the relevant portion from the statement of case by the Tribunal on the basis of which the Tribunal held that the case of the assessee was clearly falling under the provisions of sub-section (2A) of section 8 of the C.S.T. Act. 30. We have already extracted the relevant portion from the statement of case by the Tribunal on the basis of which the Tribunal held that the case of the assessee was clearly falling under the provisions of sub-section (2A) of section 8 of the C.S.T. Act. This view of the Tribunal is contrary to what the Supreme Court said in Pine Chemical Ltd's case (96 STC 355) and in the case of Hindustan Paper Corporation Ltd. (89 STC 473). 31. We, therefore, answer the first question in negative in favour of the assessee and against the respondent holding that the sales in question were not in course of inter-State trade or commerce and were in fact an intra-State sales. We answer question no.2 again in negative but against the assessee and in favour of the respondent and would hold that the assessee was liable to pay Central Sales Tax and that provision of sub-section (2A) of section 8 read with Explanation of the C.S.T. Act did not apply as there was no general exemption from payment of sales tax under the State law. 32. In view of the circumstances of the case, there will be no ORDER :as to costs. S.J. Mukhopadhaya, J.-I agree.