JUDGMENT Sudhanshu Dhulia, J. 1. Heard Mr. S.K. Posti, Advocate for the petitioner, Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand and Mr. Virendra Kaparwan, Advocate for respondent no. 3. 2. The petitioner is a private limited company having its registered office at Kotwali Road, Najibabad, District Bijnor in Uttar Pradesh. The petitioner is in the business of manufacturing and sell of “kathha” and catechu for which a basic raw material is “khair wood”. The petitioner had to procure its major portion of “khair wood” which is the basic raw material for production of “kathha” through auction purchase and other means of purchase from the State of Uttarakhand. Prior to 9.11.2000 Uttarakhand was the part of the erstwhile State of Uttar Pradesh and the petitioner was enjoying the benefit of Section 4B of the U.P. Trade Tax Act whereby certain concessions were given to the petitioner for purchase of this raw material. After 9.11.2000 the territory from which the “kathha” was being procured by the petitioner became the part of Uttarakhand and consequently a notification was issued by the State of Uttarakhand on 26.12.2000, in order to continue these benefits, which reads as under:- “51/Vitta Vyapar Kar/2000 Dated : Dehradun : December 26, 2000 (Gazette dated 26.12.2000) Whereas, the State Government is satisfied that it is necessary so to do in public interest. Now, Therefore, in exercise of the powers conferred by sub-section (5) of section 8 of the Central Sales Tax Act, 1956 (Act no. 74 of 1956), the Governor is pleased to direct that with effect from the date of publication of this notification in the official Gazette, the tax payable under sub-section (1) of the said section by any dealer having his place of business in the State of Uttaranchal of business, of any raw material, processing material, consumable stores, spare-parts, accessories, components, fuel or lubricants and packing material to the dealer having his place of business in the State of Uttar Pradesh and possessing recognition certificate issued under section 4-B of Uttar Pradesh Trade Tax Act, 1948 (Act no. XV of 1948), whose validity commences prior to November 9, 2000, for the use in the manufacture of goods or in the packing of goods manufactured by him, shall be calculated at such rate as would have been leviable on such sales against Form 3-B prescribed under the said U.P. Act No. XV of 1948, subject to the condition that the dealer selling the goods furnishes the declaration in Form ‘C’, or, as the case may be, the certificate in Form ‘D’ in accordance with the provisions of sub-section (4) of section 8 of the said Act no. 74 of 1956.” 3. In short, what the said notification states is that such dealers who were getting the benefit under Section 4-B, now under U.P. Reorganisation Act, they would continue to get the concession against Form–C of Central Sales Tax Act, 1956, as the said sale will now be an inter-state sale. After the said notification, the petitioner after the purchase of “khair” wood by way of an auction faced difficulty inasmuch inspite of the said notification the benefit under Section 4-B was not given to the petitioner and instead of concessional rates being charged by the Government he was charged the full rate of tax. Aggrieved the petitioner has filed the present writ petition before this Court. 4. In its counter affidavit, the State Government has primarily asserted that the concession is not being given to the petitioner as the petitioner has failed to furnish Form-C before the concerned authority. However, during the course of arguments learned counsel for the State Sri N.P. Sah and Mr. Virendra Kaparwan, appearing for the Uttarakhand Forest Development Corporation have urged before this Court that the primary reason for not giving the concessional rate against Form-C to the petitioner is that the purchase made by the petitioner is in an “open auction” which cannot be considered as an “inter-state” sale as the sale is complete at the fall of the hammer and consequent to the sale, the petitioner is free to re-sale the same goods in Uttarakhand or to take it elsewhere. Moreover, it is not an express condition of the contract with the petitioner that the goods given to the petitioner on auction sale had to be transported outside the State. Moreover, it is not an express condition of the contract with the petitioner that the goods given to the petitioner on auction sale had to be transported outside the State. In other words, the counsel for the State and the Uttarakhand Forest Development Corporation urge that the purchase of “khair wood” is a separate transaction and consequently transporting it to Uttar Pradesh is entirely different transaction and cannot be clubbed together. In other words, it is not an inter-state sale but an intra-state sale and no benefit under Section 4-B or the notification dated 26.12.2000 can be given to the petitioner. Section 3 of the Central Sales Tax Act, 1956 defines inter-state sale which reads as under:- “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. (b) Is effected by a transfer of documents of title to the goods during their movement from one State to another.” 5. Counsel for the petitioner urges that it is not a factum of the sale which would define it as an inter-state sale but in order to bring a particular sale under the definition of inter-state sale is both a question of fact as well as law and what the Court has to see is the totality of circumstances and the fact that the goods which have been purchased in State “A” are actually being transported to State “B” which would make it an inter-state sale. The rulings cited by the petitioner is Tata Iron and Steel Co. Ltd. Bombay vs. S.R. Sarkar and Others, 1961 AIR 65 SC; Commissioner of Commercial Taxes, Bihar vs. Bhag Singh Milkha Singh, STC 34 Page 536; Mewa Lal Kewal Kishore vs. Commissioner of Sales Tax, STC Vol. 34 Page 110; State of Bihar and Another vs. Tata Engineering & Locomotive Co. Ltd. STC Vol. XXVII Page 128, A & G Projects and Technologies Limited vs. State of Karnataka, (2009) 2 SCC 326 . 34 Page 110; State of Bihar and Another vs. Tata Engineering & Locomotive Co. Ltd. STC Vol. XXVII Page 128, A & G Projects and Technologies Limited vs. State of Karnataka, (2009) 2 SCC 326 . The counsel for the respondents have cited the ruling of Kerala High Court in Surya Vinayak Industries Ltd. vs. State of Kerala and Others, WP (C) No. 13368 of 2004 (N) which states that once an auction sale is complete the very fact that the goods purchased through auction sale has been transported to other State would not make it an inter-state sale, as the two transactions are entirely different transaction. 6. The ruling of Kerala High Court has been perused. However, in the said ruling cited by the respondents, the judgment of the Hon’ble Apex Court, particularly, the State of Bihar and Another vs. Tata Engineering & Locomotive Co. Ltd. Vol. 27 STC 127 (SC) has not been considered which gives a wide meaning to the definition of inter-state sale. In this petition the petitioner in order to strengthen his argument has also annexed invoice bills which show that the Forest Development Corporation itself, from whom the “khair wood” was purchased, has prepared the invoice on the strength of which the goods were being transported to Uttar Pradesh and there was enough evidence to consider that it was an inter-state sale. 7. In view of the aforesaid the writ petition succeeds. The petitioner is entitled to get the benefit of notification dated 26.12.2000 provided he gives enough evidence before the said authorities that the goods which he has purchased are to be consumed at its factory at Kotwali Road, Najibabad, District Bijnor (U.P.) which would make it an inter-state sale. It is further clarified that this order will be effective prospectively and shall not effect any other previous transactions which have been made, as that would amount to an unjust enrichment. 8. In view of the fact that the order has been made prospective, as passing the order with retrospective effect would amount to unjust enrichment, the third prayer of the petitioner directing the respondents to refund the amount of Rs. 1,61,26,132/- with interest cannot be granted and is hereby refused. 9. Writ petition is allowed. 10. No order as to costs.