JUDGMENT

R. K. PATRA, J. — Is the purchase of kendu leaves by the peti¬tioners an inter-State trade or intra-State trade ? This is the limited question that arises for consideration in this batch of writ petitions. As common issue is involved in all these cases, they were heard together and are disposed of by this judgment. For the sake of convenience, we have referred to the pleadings and documents of O.J.C. No. 9724 of 2000.

2. The case of the petitioners briefly stated is as follow¬ing :

Petitioner No. 2 is one of the shareholders of petitioner No.1 which is a private limited company having its registered head office at Calcutta. It carries on business in tobacco and kendu leaves. It prepares bidi with kendu leaves in the name and style of ‘Ashok Bidi’ at its factory situated in the State of West Bengal. The Orissa Forest Development Corporation Limited, opposite party No. 3 (hereinafter referred to as ‘O.F.D.C.’) is a Government of Orissa undertaking. Trade in kendu leaves in the State of Orissa being the State’s monopoly, it is being transact¬ed by the O.F.D.C. which sells processed and phal kendu/tendu leaves by way of tender and auction every year. The petitioner No.1 is a registered dealer in West Bengal both under the West Bengal Sales Tax, Act, 1994 and Central Sales Tax Act, 1956. As usual O.F.D.C. issued tender call notice for sale of processed and phal kendu (tendu) leaves for the year 2000-2001 inviting sealed tenders from purchasers duly registered with it. The petitioner No.1 being a registered purchaser with O.F.D.C. sub¬mitted its tender which was duly accepted. As required, it has entered into an agreement with O.F.D.C. After the sale of kendu leaves and payment of the sale value, lifting orders were issued by the O.F.D.C. to its respective Divisional Managers permitting the petitioner No.1 to lift the goods. Thereafter, the concerned Divisional Forest Officer issued transport permit in the pre¬scribed form on the basis of which the petitioners transported kendu leaves to its place of business in West Bengal. According to the petitioners, the sale/purchase of kendu leaves shall be deemed to have taken place in course of inter-State trade because the sale/purchase had occasioned the movement of kendu leaves from the State of Orissa to the State of West Bengal and as such, it is exigible to Central Sales Tax under the Central Sales Tax Act, 1956 and not to local sales tax. They have accordingly prayed for a declaration that levy and collection of sales tax under the Orissa Sales Tax, 1947 are unauthorised and without jurisdiction and the excess amount collected from them under the guise of Orissa Sales Tax should be refunded.

3. The Commissioner of Commercial Taxes has filed counter affidavit justifying the levy of the Orissa Sales Tax. The O.F.D.C. has also filed a separate counter affidavit in support of its collection of the Orissa Sales Tax.

4. Shri G. Rath, learned Senior Counsel for the petitioners by referring to certain documents (which will be dealt with hereinafter) and relying on the decision of the Supreme Court in Commissioner of Sales Taxes, U.P. v. Bakhtawar Lal Kailash Chand Arhti, 1992 (87) STC 196 and decisions of the Patna High Court in D.R. Garg and Company v. The State of Bihar, 1986 (63) S.T.C. 183 and Indian Explosives Limited v. State of Bihar, 1993 (89) S.T.C. 417 contended that the transaction in question is out and out an inter-State trade. Shri S. D. Das, learned Standing Counsel for the Department on the other hand submitted that the contract envisaged in the tender call notice did not provide for movement of goods from one State to another. The seller viz. the O.F.D.C. is no way concerned with that the petitioners do with respect of the kendu leaves purchased by them and the movement of kendu leaves to West Bengal has not link with the sale itself. Accord¬ing to him, the sale did not occasion in the movement of goods so as to constitute inter-State trade and therefore, it has been