The movement of goods from one state to another pursuant to and as an incident of the contract for sale is an inter-state sale within the meaning of Section 3(a) of the Central Sales Tax Act, 1956.

G. C. Bharuka, J.

1. These five references under Sec.33 (1) of the bihar Sales Tax Ordinance, 1979 (hereinafter referred to as the Ordinance)have been made by the Commercial Taxes Tribunal seeking opinion of this court on the following Questions of law.

(1) Whether on the facts and in the circumstances of the case the tribunal is right in holding that the sales resulting in delivery to customers in West Bengal by the petitioners vans were sales that occasioned the movement of materials from one State to another (2) Whether on the facts and in the circumstances of the case the tribunal was correct in drawing adverse inference against the petitioner (3) Whether on the facts and in the circumstances of the case, the tribunal was justified in holding the petitioner liable to pay tax in Bihar on the concerned transactions holding them to be inter-state sales after spelling out a case of deemed contract between the parties on the basis of adverse inference drawn by it against the petitioner ?

2. All the live references in hand relate to the same assessee giving rise to the above common questions of law under identical facts for the periods 1966-67, 1967-68, 1968-69, 1969-70 and 1970-71.

3. The relevant facts as found by the Tribunal may be set out in short. The assessee is a public Limited Company, incorporated under the indian Companies Act, 1913, having its registered office at Calcutta. It is, inter alia, engaged in the manufacture and sale of explosives having its factory at Gomla in the State of Bihar. It has its magazines spread over in other states including those at Calcutta in the State of West Bengal. The sale of explosives are affected by the assessee both from its factory as well as from its magazines. The assessee is a registered dealer under bihar Sales Tax Act as well as under the Central Sales Act (hereinafter in short the central Act ).

4. It appears that during the periods under Consideration the assessee through its Head Office in Calcutta had entered into contracts with its purchasers of West Bengal for sale of explosives. According to the assessing officer none of the contracts had a stipulation in respect of place from where the explosives were to be supplied. Admitted by part of the sale of explosives had been affected by transporting the same from the factory of the assessee at Gomla in the State of Bihar to the place of business of the customers in the State of West Bengal. These sales have been held to be inter-state Sales by the assessing officer making the assessee liable to pay central sales tax. The appeal of the assessee having failed, the dispute was carried to the Tribunal by way of filing a revision application. The tribunal also confirmed the views of the lower authorities.

5. Before the Tribunal it was, inter alia, urged on behalf of the assessee that since there is no material on record to prove that there was any convenant in the contracts for supply of explosives from the factory at Gomla to the site of the customers, therefore, the transaction cannot be deemed to be that of inter-state sale. To repudiate this part of the submission, the Tribunal by placing reliance on various circumstances appearing in the case, held that from the conduct of the parties an implied contract can be infered to the above effect. The Tribunal has recorded in its revisional order that though, as noticed by the assessing authorities, copies of the agreement and other relevant papers including the instructions issued by the assessee to its factory at Gomla for despatch of goods to the site of its customer in West Bengal had been placed on record but. except one document all others were missing. It also appears that inspite of repeated opportunities given to the assessee to produce the said documents relating to the transactions in question for proper adjudication of the issues involved, the assessee did not comply with the same on the plea of non availability because of long lapse of time. The Tribunal found t