(1) SPECIAL leave granted. Heard both the sides.

(2) WE allow this appeal solely on the ground that the statement of Banke Lal which was not tested by cross-examination was used in order to reach the conclusion that the transaction was an inter-State sale. We are told that Banke Lal has now died. Under the circumstances, we set aside the order of the High court as also of the Sales Tax tribunal and remit back the matter to the Sales Tax tribunal at Meerut. It will be open to the appellant to produce the documents which the appellant has offered to produce before us. The tribunal will permit the appellant to produce the documents subject to being satisfied about the genuineness thereof and to pronounce upon the reliability of the documents and the impact of it on the matter in issue.

(3) RESPONDENTS 3 and 4 have stated in paragraph 7 of the counter-affidavit as under:

THE tribunal while examining the nature of transaction about the transaction of Rs. 1,93,380.00 had observed as under :

WE wanted to see the bills made by M/s D. P. Paint Mart to M/s Baba Glue Factory on consignment basis, if any, as alleged. The bijaks or bills could have clinched the issue but, they have not been produced on the plea that they are no more available as Sri Banke Lal has himself expired.

THUS the primary evidence which was very relevant to decide whether the goods sent by the Hapur party to M/s D. P. Paint Mart of Delhi were for sale on consignment basis and whether M/s D. P. Paint Mart had actually sold them on consignment basis to M/s Baba Glue Factory of Delhi have not been made available before us for the reasons best known to the assessee party.

It will be open to the tribunal to call upon the appellant to produce the aforesaid bills and other documents and in case the same are not produced, it will be open to the tribunal to draw adverse inferences admissible in law in regard thereto. It will also be open to the tribunal to consider the circumstances that arhat was credited in a lump sum. The tribunal will render its decision afresh taking into account all the material and circumstances in the light of the submission.

(4) THE interim order as regards the interest amount shall continue to operate till the Sales Tax tribunal disposes of the matter.

(5) THE appeal is disposed of accordingly. There will be no order as to costs.