The mere quarrying of stones and breaking them into specified sizes does not amount to a sale.

( 1 ) IN this application, the petitioner challenges an order of assessment dated 21st August, 1963 and certain notices issued under the provisions of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Act ).

( 2 ) THE facts relating to the present application may be briefly noted. The petitioner was appointed as a contractor under the Public Works Department of the Government of West Bengal for supply of stone materials of different sizes including boulderss chips and shingles after collecting them from river-beds, in terms of the directions of the Public Works Department, Jalpaiguri.

( 3 ) THE petitioner was appointed as a contractor as aforesaid in terms of a tender which was offered by the petitioner and accepted by the Public Works Department, Government of West Bengal.

( 4 ) SOME of the conditions of the tender, which are annexure C to the petition, are material for the purpose of deciding the controversy in the present case and may be set out below:

( 5 ) THE material portion of Clause 2 of the tender is as follows : the contractor is to deliver the materials on or before the dates mentioned in the tender. . . .

( 6 ) CLAUSE 6 runs as follows : on the completion of the delivery of materials, the contractor shall be furnished with a certificate to that effect, but the delivery will not be considered complete until the contractor shall have removed all the rejected materials and shall have the approved materials stacked or placed in such position as may be pointed out to him.

( 7 ) CLAUSE 7 provides as follows : the material shall be of the best description and in strict accordance with the specification and the contractor shall receive payment for such materials only as are approved and passed by the Executive Engineer or the Sub-Divisional Officer.

( 8 ) CLAUSE 6 of the conditions of the contract provides as follows: On completion of the work, the contractor shall be furnished with a certificate by the Sub-Divisional Officer/divisional Officer (hereinafter called the Engineer-in-charge) of such completion, but no such certificate shall be given, nor shall the work be considered to be complete until the contractor shall have removed from the premises on which the work shall be executed all scaffolding, surplus materials and rubbish and cleaned off the first from all wood-work doors, windows, walls, floors, or other parts of any building in, upon or about which the work is to be executed. . . .

( 9 ) CLAUSE 7 of the conditions runs as follows: no payments shall be made for works estimated to cost less than rupees one thousand, till after the whole of the works shall have been completed and a certificate of completion given.

( 10 ) IT may be mentioned that there was some additional conditions attached to the tender which as I have stated was accepted by the Public Works Department of the Government of West Bengal.

( 11 ) CLAUSE 6 of the additional conditions provides as follows: contractors in the course of their work should understand that all materials (e. g. , store and other materials) obtained in the work of dismantling, excavation, etc. , will be considered Government property and will be disposed of to the best advantage of Government.

( 12 ) ANOTHER material document is a letter dated 24th December, 1962, from the Deputy Chief Engineer, West Bengal, Jalpaiguri, to the petitioner, which is as follows : dear Sir, your rate offered in the separate bid for the above-noted work at 5 per cent less (five per cent less) than the schedule of rates for 1961-62 of Northern Circle, P. W. D. , for collection of stone boulders and shingles and at 5 per cent less (five per cent less) than the schedule of rates for 1962-63 for breaking of stone metal to stone chips (labour only) as well as for carriage of all stone materials, boulders, shingles, etc. , i. e. , amounting to Rs. 3,72,979 against the estimated amount of Rs. 2,98,383 put to tender has been accepted by me for and on behal