Arun Mishra J.

1. The question for consideration in these writ petitions is whether the sale could be said to be inter-State sale.

2. In some of the writ petitions, the Petitioners are based in Madhya Pradesh. They are also holding the export licence and they are the dealer registered under the provisions of the M. P. Commercial Tax Act/VAT Act.

3. The Petitioners/purchasers are based at Gujarat or some other State in Writ Petition Nos. 16782 of 2007, 16783 of 2007, 16785 of 2007, 16787 of 2007, 16788 of 2007, 16790 of 2007, 8996 of 2010, 2054 of 2008, 7018 of 2009, 2052 of 2008, 2053 of 2008.

4. It is averred in Writ Petition No. 12790 of 2008 that the Petitioners are registered dealers in Madhya Pradesh and they purchased tendu leaves (tendupatta) sold by the M. P. State Minor Forest Product (Trading and Development) Cooperative Federation Limited (hereinafter referred to as, "the Federation"). They are also registered under the M. P. Tendupatta Vyapar Viniyaman Regulation, 1966 to sell tendu leaves in other States in the course of inter-State trade and commerce after paying the prescribed registration fee. They are also registered as exporters and they are required to sell tendupatta in the course of inter-State trade and commerce also. They are also registered under the M. P. Commercial Tax Act and Central Sales Tax Act as dealers. Entry No. 5 in Part III to Schedule II of the VAT prescribes payment of 25.30 per cent of tax on tendupatta. In case sale is within the State the said tax is paid to the State and in case it is inter-State trade and commerce then the Central sales tax is required to be paid in absence of C form. The State is realizing the VAT on the transaction in question. Their right is adversely affected in carrying out inter-State trade. The rate of tax on tendupatta was revised as per the Schedule (P5). The transaction was of inter-State sale. The transaction is covered by the decision of the apex court in the case of State of Orissa v. K.B. Shah & Sons Industries Pvt. Ltd. reported in [2007] 7 VST 214 : [2007] 9 SCC 97 : [2007] 38 TLD 514. The State tax is not payable in case of such transaction. The goods are purchased for the purpose of export. The Petitioners are also required to transport the goods after receiving the transit passes. Challan for transportation is also endorsed to the purchasers of another State. The movement of goods is incidental to purchase and cannot be disassociated with the transaction of sale. Respondent No. 2 very well knew that the tendupatta is being purchased for inter-State sale. An agreement was also entered into. A prayer has been made to declare that levy, assessment and collection of tax under the State Act is unauthorised without jurisdiction and the transaction falls within the purview of the Central Sales Tax Act. A prayer has also been made to refund the excess tax realised.

5. In Writ Petition No. 7562 of 2010, though the question of ultra vires of provision of Sections 26, 27 and 35 of the M. P. VAT Act, 2002 has been raised but it has not been pressed.

6. In Writ Petition No. 16782 of 2007, it is averred that the Petitioner belongs to the State of Gujarat and transports bamboos from State of Madhya Pradesh to the State of Gujarat for manufacturing process. The transit passes were issued. The work order was also issued by the Forest Department. Form 27 issued by the Income Tax Department under Section 206C of the Income Tax Act, 1961 was also submitted. The movement of goods fulfils the precondition essential for a sale in the course of inter-State trade and commerce, therefore, the transaction is inter-State transaction within the meaning of Section 3(a) of the Central Sales Tax Act, 1956. The collection of commercial tax on inter-State sale is not permissible under Section 79 of the Commercial Tax Act, 1994 or VAT Act, 2002 which came into force with effect from April 1, 2006.

7. The tender notice dated October 31, 2005 (P1) was issued. Advertisement (P2) was issue