Judgment

HIDAYATULLAH, J. : These two appeals on a certificate under Art. 132(1) of the Constitution have been filed respectively by the Burmah Shell Oil Storage and Distributing Co., of India, Ltd., and the Standard Vaccum Oil Company (in this judgment referred to as the appellant-Companies) against a common judgment of the High Court of Calcutta dated December 7, 1956. The High Court was moved for writs of mandamus, prohibition and certiorari under Art. 226, but the petition was dismissed by D. N. Sinha, J. The matter arises out of assessment to sales tax on sale of motor spirit for aviation purposes (shortly, aviation spirit) supplied by the appellant-Companies to aircraft bound for countries abroad, under the Bengal Motor Spirit Sales Taxation Act, 1941, as amended by S. 2 (a) (i) of the Bengal, Motor Spirit Sales Taxation (Second Amendment) Act, 1954. The Commercial Tax Officer, the Commissioner of Commercial Taxes and the State of West Bengal have been joined as respondents in this Court, as they had previously been joined in the High Court.

2. The appellant-Companies deal in Petroleum and Petroleum products, and carry on business at Calcutta. They maintain supply depots at Dum Dum Airport from which aviation spirit is sold & delivered to aircraft proceeding aboard and belonging to several Companies. It appears that such sales were treated by the sales tax authorities in the State of Bombay as not falling within the taxing Acts in force in the Bombay State by reason of the provisions of Art. 286 of the Constitution. The sales tax authorities in West Bengal, however, took a different view of the matter, and after sundry procedure resulting in assessment of tax, presented a demand notice for the tax assessed which was paid under protest by the appellant Companies. The appellant Companies filed petitions under Art. 226 of the Constitution in the High Court of Calcutta questioning the legality of the imposition but without success. They have now filed these appeals after obtaining a certificate, as already stated.

3. The contention in this Court, as they were also before the High Court, are that such sales are made in the course of export of such aviation spirit out of the territory of India, that they take place outside the State of West Bengal, that inasmuch as aviation spirit is delivered for consumption outside West Bengal, the sales cannot fall within the Explanation to sub-cl. (a) of the first clause of Art. 286, and that unless they can be said to become "Explanation Sales" the power to tax does not exist. It is argued in support of the last contention that there is not even an averment in the reply of the respondents before the High Court that aviation spirit is delivered for consumption within West Bengal.

4. The case in the High Court was restricted to consideration of supplies to aircraft which either proceed to foreign countries directly from Dum Dum Airport, or do so ultimately, though landing en route at some place or places in the Indian territory. The case has been similarly confined in this Court also, and we are not required to express any opinion about sales of aviation spirit to aircraft flying from one place in West Bengal to another place also within that State, or even to some place in another State in the territory of India.

5. The facts are fortunately not in dispute. Both parties admitted the procedure for the supply to aviation spirit to aircraft. Briefly described it is as follows : Before the arrival of such an aircraft, a representative of the appellant-Companies applies to the Airport Customs Officer to depute an Officer to supervise the refuelling of the aircraft. After the aircraft lands, the captain or the Ground Engineer gives instruction about the quantity of aviation spirit required, and on permission being given by the Customs authorities, the stated quantity is delivered in the presence of the Customs Officer deputed. Details of the delivery are entered in a delivery receipt, which is signed