JUDGMENT C. N. RAMACHANDRAN NAIR, J. – The assessee who is a registered dealer in Kerala both under the Kerala General Sales Tax Act and Central Sales Tax Act, obtained a purchase order from Tata Tea Limited for supply and delivery of 225 bundles of barbed wire at the buyer's place at Valpari in Tamil Nadu. Pursuant to the purchase order so obtained, the assessee placed a supply order with a Calcutta supplier with direction to send the goods to the buyer's place. At the request of the assessee, the supplier sent the goods to Valparai under cover of invoice in favour of the assessee and sent E1 form to the assessee to claim exemption on subsequent inter-State sale under section 6(2) of the Central Sales Tax Act, 1956. The assessee also issued C form obtained from Kerala for the purchase made to Calcutta party. After such purchase, the assessee made sale to Tata Tea Ltd., and claimed exemption under section 6(2) of the Central Sales Tax Act, 1956. Though sale by endorsement of title to goods (LR) is not admitted by assessee, such sale has to be presumed because the assessee claimed exemption under section 6(2) on their sale to Tata Tea Ltd., which is possible only after sale by endorsement of title to goods. However, since the purchaser, namely, Tata Tea Ltd., failed to issue C form, the assessee could not press the claim of exemption originally made in the return which was proposed to be disallowed by the assessing officer while issuing pre-assessment notice. At the stage of reply to pre-assessment notice, the assessee took the stand that the sale by the assessee to the buyer, Tata Tea at Valparai has to be treated as a local sale in Tamil Nadu. This was rejected by the officer and the transaction was assessed obviously under proviso to section 9(1) of the Central Sales Tax Act treating it as a subsequent inter-State sale not covered by exemption under section 6(2) of the Central Sales Tax Act as the assessee could produce only E1 form and no C form to get exemption under section 6(2). First appeal was unsuccessful and second appeal filed by the assessee was allowed by the Tribunal after holding that the transaction is a local sale by the assessee in Valparai in Tamil Nadu State. First appeal was unsuccessful and second appeal filed by the assessee was allowed by the Tribunal after holding that the transaction is a local sale by the assessee in Valparai in Tamil Nadu State. We have heard the Government Pleader who has filed the revision on behalf of the Government, learned counsel for the assessee and have also gone through the orders of assessment, first appeal and that of the Tribunal. We do not find any basis for the finding of the Tribunal that the sale is a local sale by the assessee at Valparai in Tamil Nadu. The assessee did not have such a case at least at the time of filing the annual return based on which pre-assessment notice was issued. Going by the assessment order, it is clear that the assessee maintained the claim of exemption under section 6(2) by producing E1 form. It is only when proposal for assessment was made proposing disallowance of exemption claimed by the assessee under section 6(2), that the assessee changed the stand from subsequent inter-State sale under section 6(2) to that of local sale in Tamil Nadu. A local sale in Tamil Nadu arises only when the assessee has gone from Kerala, taken delivery of goods at Valparai and delivered the same to the buyer, in which case there was no need for the assessee to have put up a claim of subsequent inter-State sale under section 6(2) at the time of filing the return and claiming exemption in the return itself. In fact, if a local sale in Tamil Nadu is made, it is a sale outside Kerala and there was no need for the transaction to come in the Central sales tax turnover at all. Further the very purpose of obtaining E1 form from the supplier in Calcutta and production of the same by the assessee is only to advance the claim of exemption under section 6(2) of the Central Sales Tax Act, 1956. Therefore, there was no necessity to consider the transaction as one falling under section 4 of the Central Sales Tax Act, 1956. In fact, the assessee may probably be entitled to change the legal stand in the course of assessment but it is strange that the assessee can change the physical position from that of an inter-State sale by endorsement of title to goods to that of a local sale. In fact, the assessee may probably be entitled to change the legal stand in the course of assessment but it is strange that the assessee can change the physical position from that of an inter-State sale by endorsement of title to goods to that of a local sale. Therefore, in the absence of any material, the finding of the Tribunal that the petitioner has made a local sale in Tamil Nadu is absolutely perverse. The next question canvassed by learned counsel for the assessee is that no inter-State sale can be assessed at 10 per cent on the transaction so long as there was no movement of goods from Kerala to Valparai in Tamil Nadu. We cannot agree with this proposition. Inter-State movement of goods is a necessary pre-condition for assessment either under section 3(a) or section 3(b) of the Central Sales Tax Act, 1956. In this case admittedly there is inter-State movement of goods pursuant to the sale under section 3(a) from the Calcutta supplier to the petitioner for delivery at Tamil Nadu. In the course of movement of the goods from West Bengal to Tamil Nadu, the petitioner obviously made subsequent sale by endorsing the L.R. in favour of the ultimate buyer, i.e., Tata Tea Ltd. Therefore, this is a case of two sales in the course of movement of goods from one State to another. The transactions are : (1) sale under section 3(a) from the Calcutta-supplier to the assessee and (2) sale under section 3(b) by the assessee to their buyer, i.e., Tata Tea Ltd. The assessing officer rejected the claim of exemption put forward by the assessee under section 6(2) of the Central Sales Tax Act, 1956 which entitles a subsequent inter-State seller for exemption when goods are sold by endorsement of title to goods provided he produces declaration from the supplier in El form and from the buyer in C form. Probably barbed wire not being an eligible item in respect of which the ultimate buyer could issue C form, the assessee had to give up the claim of exemption under section 6(2). Thereafter the assessee cannot be permitted to shift the stand to that of a local sale as rightly held by the assessing officer as well as by the first appellate authority. We have already held that the Tribunal's finding that the transaction is a local sale is without any basis. Thereafter the assessee cannot be permitted to shift the stand to that of a local sale as rightly held by the assessing officer as well as by the first appellate authority. We have already held that the Tribunal's finding that the transaction is a local sale is without any basis. We do not find any substance in the contention of the assessee that there should be movement of goods from Kerala to Tamil Nadu for assessing the transaction at 10 per cent in Kerala because proviso to section 9(1) of the Central Sales Tax Act specifically covers a situation of this nature. The said section is extracted hereunder : "9. Levy and collection of tax and penalties. - (1) The tax payable by any dealer under this Act on sales of goods effected by him in the course of inter-State trade or commerce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provision of sub-section (2), in the State from which the movement of the goods commenced : Provided that, in the case of a sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods and being also a sale which does not fall within sub-section (2) of section 6, the tax shall be levied and collected -, (a) Where such subsequent sale has been effected by registered dealer, in the State from which the registered dealer obtained or, as the case may be, could have obtained, the form prescribed for the purposes of clause (a) of sub-section (4) of section 8 in connection with the purchase of such goods, and, (b) Where such subsequent sale has been effected by an unregistered dealer, in the State from which such subsequent sale has been effected. .........". Section 9(1) provides that the tax is payable in the State wherefrom the movement of the goods commenced. However, when an assessment is to be made in respect of a subsequent sale made by endorsement of title to goods, not being entitled to exemption under section 6(2), then the proviso to section 9(1) authorises assessment in the State wherefrom the C form was obtained by the dealer for issue to the seller. However, when an assessment is to be made in respect of a subsequent sale made by endorsement of title to goods, not being entitled to exemption under section 6(2), then the proviso to section 9(1) authorises assessment in the State wherefrom the C form was obtained by the dealer for issue to the seller. In this case admittedly the assessee issued C form obtained from Kerala for supply to the Calcutta supplier for the inter-State purchase made by the assessee. Therefore, a subsequent sale on the very same transaction is assessable in Kerala by virtue of proviso to section 9(1) of the Central Sales Tax Act, 1956. The assessment was accordingly made by the officer strictly in compliance with statutory provisions. We are unable to agree with the finding of the Tribunal to the contrary which is based on a totally wrong assumption of facts that the sale was a local sale by the assessee in Tamil Nadu. In this case since the claim made was one under section 6(2) which was disallowed, there is no scope for assessment at concessional rate because if C form was available from Tata Tea Ltd., to the assessee, then of course it would have been a case of exemption under section 6(2) and not a case of concessional rate. The tax revision case is therefore allowed setting aside the order of the Tribunal and restoring the assessment order confirmed in first appeal. Petition allowed.