TaxTMI 
TaxTMI 
2003 (7) TMI 661
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....ourse of inter-State trade and commerce. The sale of motor vehicles within the State of Arunachal Pradesh are taxable at the rate of 12 per cent under the Arunachal Pradesh Sales Tax Act, 1999 (hereinafter referred to as "the Act of 1999"). The State Government, in exercise of its powers under section 8(5)(b) of the Central Sales Tax Act, 1956 (hereinafter referred to as "the Act of 1956") directed, vide Notification No. Tax/ 436/95/Part III, dated May 2, 2001 (annexure A), that Central sales tax in respect of motor vehicles sold to any person, in course of interState trade and commerce by any dealer having his place of business in the State of Arunachal Pradesh and dealing with such motor vehicles, shall, with immediate effect, be calculated at the rate of two per cent on the turnover of such sale. The petitioner, which also sells motor vehicles aforementioned, in course of inter-State trade and commerce, charged, in the light of the aforesaid notification, dated May 2, 2001 (annexure A), Central sales tax at the rate of two per cent on the sale of motor vehicles made to various persons outside the State of Arunachal Pradesh. However, by letter No. S-TAX-22000, dated February 7, 2....
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....r, inter alia, enforcement of the notification, dated May 2, 2001 (annexure A) in letter and spirit and also not to levy tax at the rate of 12 per cent on the inter-State sale of vehicles. Although no express order was passed by the authority rejecting the representation, which was improperly treated as an appeal, the said representation should be deemed to have been rejected, when the respondent No. 5 issued a notice, dated May 27, 2002 (annexure H) directing the petitioner to show cause as to why local sales tax amounting Rs. 2,94,19,896 only, paid in short, should not be recovered within one month therefrom and as to why penalty should not be imposed under section 22(G) of the Act of 1999. The show cause notice, dated May 27, 2002 aforementioned was issued mainly on three broad grounds, namely, (i) that there must exist a bond between the contract of sale and actual transportation outside the State by way of a specific purchase order, contract or agreement, (ii) the sale must be made to the dealers and not to the individual and "C" form must be produced in support of the sales made in course of inter-State trade and commerce. By making the present application under article 226 o....
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....were in the course of inter-State trade, benefit of notification, dated May 2, 2001 (annexure A) cannot be availed of by it. After final assessment order is issued, the petitioner, if aggrieved, can prefer an appeal. The petitioner has submitted only two documents to show that the sales, in question, took place in the course of interState trade or commerce. As regards remaining transactions of sale, no material has been placed to show that the same were covered by inter-State trade or commerce. In the absence of any document showing that there was an agreement between the parties for the purpose of transferring of title to the goods from the State of Arunachal Pradesh to some other State, no sale of such goods can be treated as sale taking place in course of inter-State trade or commerce. Some of the motor vehicles alleged to have been sold outside the State of Arunachal Pradesh have not moved out of Arunachal Pradesh. The letter, dated February 7, 2002 (annexure B) was issued by the respondent No. 5 on satisfaction reached by the respondent No. 5 and hence, it is immaterial that the respondent No. 5 has issued instructions contained in the order, dated February 7, 2002 with refere....
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.... sale of vehicles by any dealer to any person in course of inter-State trade and commerce, the executive authority, such as, the Assistant Commissioner (Legal) Taxes and Excise (i.e., the respondent No. 3) could not have directed that no inter-State sale of motor vehicle at two per cent will be allowed and/or that the dealers shall be free to sell motor vehicles to outsiders on payment of local sales tax at 12 per cent. 7.. Referring to various provisions of the Constitution and, particularly, to articles 246 and 286 vis-a-vis entry 92-A of the Union List and entry 54 of the State List, Dr. Saraf has submitted that the Constitution imposes restrictions on the powers of the State to impose tax on sale and purchase, which takes place in course of inter-State trade and commerce, inasmuch as it falls entirely within the legislative domain of the Parliament to frame laws in respect of inter-State trade and commerce. In such a situation, points out Dr. Saraf, it was wholly without jurisdiction for the respondent No. 3 to inform the respondent No. 5 that pending Government decision, no inter-State sale of motor vehicles at two per cent would be allowed and/or that the dealers were free....
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....s. Relying on two such certificates issued by the petitioner, Dr. Saraf contends, that these certificates show that the buyers were from the State of Assam and these documents are, in themselves, enough to show that as far as the petitioner is concerned, the vehicles were sold to persons, who are residents of the State of Assam and not of Arunachal Pradesh. In the absence of any material to show, contends Dr. Saraf, that the vehicles, despite such certificates, did not move out of the State of Arunachal Pradesh, no demand imposing sales tax treating the sales, in question, as not being inter-State sale can be raised by the sales tax authorities. That a sale, in order to be an inter-State sale, need not be express or in writing, Dr. Saraf has referred to Commissioner of Commercial Taxes v. Bhag Singh Milkha Singh [1974] 34 STC 535 (Pat), Thavakkal Agencies v. State of Tamil Nadu [1981] 47 STC 179 (Mad.), Oil India Ltd. v. Superintendent of Taxes [1975] 35 STC 445 (SC); AIR 1975 SC 887 and Indian Oil Corporation Ltd. v. Union of India [1981] 47 STC 1 (SC). 9.. Referring to the provisions of section 8 of the Central Sales Tax Act, 1956, Dr. Saraf has submitted that a State Governme....
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....y person", which means that the buyer may be a registered dealer or the Government itself or a private individual. Hence, the sales made by the petitioner to individuals, who are residents of the State of Assam, cannot, contends Dr. Saraf, be treated as sales within the State of Arunachal Pradesh and hence, notice to show cause, so issued, is without jurisdiction. For the submissions made by Dr. Saraf that State Government has the power to remove any restrictions on the inter-State sale, Dr. Saraf has referred to Atiabari Tea Co. Ltd. v. State of Assam, reported in [1961] 1 SCR 809 and Shree Digvijay Cement Co. Ltd. v. State of Rajasthan [2000] 117 STC 395 (SC). 10.. Assailing the various letters and the show cause notice, which are under challenge in the present writ petition, Dr. Saraf has pointed out that the letter, dated February 7, 2002 of the respondent No. 5 that the sales tax would have to be paid at 12 per cent even in respect of sales, where the buyers are from outside the State, was actually issued, according to Dr. Saraf, in pursuance of the letter, dated February 6, 2002, issued by the respondent No. 2, who is an authority superior to the respondent No. 5. The resp....
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....e petitioner claiming to be inter-State sales, are found to have been registered within the State of Arunachal Pradesh. This shows, according to Mr. Nabam, that the sales were, in fact, not inter-State sales. This apart, contends Mr. Nabam, the petitioner must give satisfactory materials to show that the sales made by it were interState sales, but in the case at hand, no such material exists. 13.. Referring to the decisions in Kelvinator of India Ltd. v. State of Haryana [1973] 32 STC 629 (SC); AIR 1973 SC 2526, Manganese Ore (India) Ltd. v. Regional Assistant Commissioner of Sales Tax, Jabalpur [1976] 37 STC 489 (SC); AIR 1976 SC 410 and Balabhagas Hulaschand v. State of Orissa [1976] 37 STC 489 (SC) ; AIR 1976 SC 1016, Mr. Nabam has contended that the sales, in the instant case, were not inter-State sales under the law contained in that behalf. The respondent No. 5 was, according to Mr. Nabam, competent to issue the notice, which stands impugned in the present writ petition inasmuch as there is no satisfactory written record to show that the sales, in question, were made to buyers outside the State of Arunachal Pradesh. 14.. It has been submitted by Mr. Nabam that against t....
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....the same were made for being effective in the State of Assam, where the vehicles were to be carried to and registered with the motor vehicles authorities concerned. In the face of the materials on record, contends Dr. Saraf, it is for the respondents to show that the vehicles had not moved out of the State of Arunachal Pradesh in pursuance of such sales. In this regard, it has not been contended by the respondents in the show cause notice, in question, points out Dr. Saraf, that the vehicles had not moved outside the State of Arunachal Pradesh. In respect of his submissions, so made, Dr. Saraf has referred to Hindustan Paper Corporation Limited v. Commissioner of Taxes reported in (2003) 1 GLR 221. 17.. As regards the submission of the respondents that this writ petition is not maintainable on account of the pendency of the appeal said to have been lying for disposal with respondent No. 5, Dr. Saraf has submitted that it is noteworthy that this appeal is actually a representation and the same could not have been legally treated as a statutory appeal inasmuch as the materials on record clearly reveal that it is at the instruction of the respondent No. 2, namely, Commissioner o....
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.... by him (respondent No. 5) in compliance with the directions issued to respondent No. 5 by respondent No. 2, namely, the Commissioner of Tax and Excise, Government of Arunachal Pradesh, stopping sale of motor vehicles from Arunachal Pradesh to persons outside the State. (iii) Letter, dated March 14, 2002 (annexure F to the writ petition) issued by the respondent No. 3, Assistant Commissioner (Legal) Tax and Excise, Government of Arunachal Pradesh, informing the petitioner that pending Government decision, no inter-State sale of motor vehicles at 2 per cent of sales tax will be allowed. However, the motor vehicle dealers are free to sell motor vehicle at 12 per cent local sales tax to outsiders. (iv) Letter, dated May 7, 2002 (annexure G), issued by respondent No. 3, Assistant Commissioner (Legal) Tax and Excise, informing the petitioner that the Government has decided that sales tax at 12 per cent would be charged from the buyers coming from outside the State for buying motor vehicles to Arunachal Pradesh on the ground that such sales are not inter-State sale. (v) Notice to show cause, dated May 27, 2002 (annexure H), issued by respondent No. 6, Assessing Officer, Office o....
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....free subject to such restrictions, which the Parliament may choose to impose. However, even a State Legislature may, by making law, impose reasonable restrictions on the freedom of trade, commerce and intercourse as may be required in the public interest subject to the condition that before making such law, sanction of the President shall be obtained. In other words, apart from the fact that the restriction, sought to be imposed by a State, has to be reasonable, such restriction, even if reasonable, can be imposed only in public interest by the State Legislature and that too, by making law after obtaining previous sanction of the President. Imposition of complete restriction on the trade, commerce and intercourse throughout the country or movement of the goods from one State to another by issuance of an executive order is, as correctly submitted by Dr. Saraf, foreign to the entire constitutional scheme of taxation. When article 304 provides that the State Legislature cannot enact any law putting even reasonable restrictions on the trade, commerce and intercourse without the previous sanction of the President, the executive authorities like the Commissioner of Tax and Excise and/....
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....down to the effect that no taxes shall be imposed on the sale and purchase, which has taken place outside the State or is in the course of import or export out of India. Clause (2) of article 286 vests the Parliament with the powers to frame laws formulating principles for determining as to when a sale or purchase of goods, within the meaning of article 286(1), can be held to have taken place outside the State or in the course of import or export. Clause (3) of article 286 provides that any law framed by State imposing or authorising imposition of taxes in the course of inter-State trade and commerce shall be subject to the restrictions as may be imposed by the Parliament. 25.. A careful study of articles 246 and 286 read with entry 92-A and entry 54 of List I and List II respectively clearly reveals that the power to impose taxes on sale or purchase of goods, other than newspapers, which takes place within a State, belongs to the State in terms of entry 54 of List II of the Seventh Schedule to the Constitution, whereas levy of taxes on movement of goods in the course of inter-State trade and commerce or in the course of import and export are within the exclusive domain and juri....
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....on. In other words, no taxes can be imposed by the State on sales and purchases, which are covered under the Central Sales Tax Act. Any attempt made to the contrary would amount to double taxation and would, therefore, be contrary to not only the provisions of the Constitution, but the Central Sales Tax Act, 1956, and the Rules framed thereunder. This aspect of the matter becomes clear from the law laid down in Tata Iron and Steel Co. Ltd. v. S.R. Sarkar reported in [1960] 11 STC 655, wherein the apex Court held as under: "Transaction of sale is subject to tax under the Central Sales Tax Act, 1956, on the completion of the sale and a mere contract of sale is not a sale within the definition in section 2(g). A sale being by definition, transfer of property, becomes taxable under section 3(a) if the movement of goods from one State to another is under a covenant or incident of the contract of sale, and the property in the goods passes to the purchaser otherwise than by transfer of documents of title when the goods are in movement from one State to another. In respect of an inter-State sale the tax is leviable only once and the two clauses of section 3 are mutually exclusive. A ....
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....tion 8(3) shall be at 4 per cent provided that conditions prescribed in section 8(4) are satisfied [section 8(1)]; (ii) Tax payable by a dealer on his turnover of inter-State sales, not falling under section 8(1) of 'declared goods', shall be twice the rate applicable to the sale or purchase of such goods inside the appropriate State [section 8(2)(a)]; (iii) Tax payable relating to inter-State sale of other than declared goods and not falling under section 8(1) shall be at 10 per cent or at the rate applicable for sales inside the appropriate State, whichever is higher [section 8(2)(b)]; (iv) Notwithstanding anything contained in section 8(1) or 8(2)(b), if the goods are sold in course of inter-State trade and commerce, the sale or purchase of which is, under the sales tax law of the appropriate State exempted from tax generally or subjected to tax generally at a rate lower than four per cent, it shall be either exempted from tax or the tax under the Central Sales Tax Act shall be levied at the lower rate as applicable inside the appropriate 'State' [section 8(2A)]; and (v) Notwithstanding anything contained in section 8(1) to 8(4) of the Central Sales Tax Act, t....
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....se here to further point out that as to what constitute an inter-State sale, the apex Court in State of A.P. v. National Thermal Power Corporation Ltd. reported in [2002] 127 STC 280; (2002) 5 SCC 203, has laid down as follows: "It is well-settled that a sale in the course of inter-State trade has three essential ingredients: (i) there must be a contract of sale, incorporating a stipulation, express or implied, regarding inter-State movement of goods; (ii) the goods must actually move from one State to another, pursuant to such contract of sale, the sale being the proximate cause of movement; and (iii) such movement of goods must be from one State to another State where the sale concludes. Therefore, a movement of goods which takes place independently of a contract of sale would not fall within the meaning of inter-State sale. Similarly, if the transaction of sale stands completed within the State and the movement of goods takes place thereafter, it would obviously be independently of the contract of sale and necessarily by or on behalf of the purchaser alone and, therefore, the transaction would not be having an inter-State element." (Emphasis is supplied). 33.. What, thus, ....
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....ent of Arunachal Pradesh has issued, in exercise of its powers under section 8(5)(b) of the Central Sales Tax Act, 1956, notification, dated May 2, 2001 (annexure A) reducing the rate of Central sales tax to 2 per cent in respect of sale of various kinds of motor vehicles by any dealer to any person in course of inter-State trade and commerce and the said notification is still in force, the Assistant Commissioner (Local) Taxes and Excise has no authority and jurisdiction to issue any direction to the assessing authority not to allow sales of motor vehicles in course of inter-State trade and commerce at 2 per cent as contemplated in the notification, dated May 2, 2001 (annexure A). Moreover, the inter-State transactions are governed by the provisions of the Central Sales Tax Act, 1956, and the rate of tax, in normal course to be applied to such inter-State transactions having been specified in the Act of 1956, no demand for payment of tax at the rate applicable under the States sales tax law can be raised by any executive authority in respect of inter-State transactions, particularly, when there is no law permitting demand for such enhanced rate of local sales tax. 36.. The actio....
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.... and commerce is that there must be an obligation to transport the goods outside the State, the obligation may be of the seller or of the buyer and it may arise by reason of the statute, from terms of contract, mutual understanding or agreement between the parties and/or from even the nature of the transaction, which linked the sale to such transaction. Such an obligation may be expressed under the contract itself or it may be implied by a mutual understanding. It is not necessary that in all cases, there must be pieces of direct evidence showing such obligation in a written contract or oral agreement. Such obligations are inferable from circumstantial evidence also. 40.. In Commissioner of Commercial Taxes v. Bhag Singh Milkha Singh [1974] 34 STC 535 (Pat) the assessee's firm, which was registered as a dealer in timber under Bihar Sales Tax Act, had supplied, on the basis of orders placed, over phone, by purchasers timber without there being any separate written contract of sale. The Patna High Court, while dealing with this case, wherein the dealer's claim for deduction from the taxable turnover of a certain sum on account of sale of timber in course of inter-State trade and c....
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....in a period of seven days from the date of taking delivery of such a vehicle, excluding the period of journey and shall be accompanied by, inter alia, a sale certificate in form 21. According to this form, the name of the buyer with address must be mentioned in the certificate. If the certificate, so issued, shows that the buyer is from a State other than the State, where the seller is located, the inference, until rebutted, will be that the vehicle is aimed at being taken to, and get registered at, the place, where the buyer resides and that the vehicle had moved out of the State in terms of what the certificate granted in form 21 indicates. 44.. In the case at hand, the petitioner claims to have issued sale certificates in form 21 as per rule 47(1)(a) of the Motor Vehicle Rules, 1989, addressed to the registering authority for registration of the vehicles, in question, and in the certificates so issued, the names of the buyers along with their respective address were mentioned. In support of this plea, the petitioner has annexed two of such certificates as annexure I to the writ application. There is no dispute before me that it is on the basis of such certificates only that t....
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....achal Pradesh is immaterial until the time the respondents show that it is on the strength of the certificates issued in form 21 by the petitioner that the vehicles have been registered in the State of Arunachal Pradesh and/or that in terms of the certificates granted by the petitioner, the vehicles, in question, never moved out of the State of Arunachal Pradesh. Amazingly enough, no such material, which could contradict or demolish the case set up by the petitioner, could be produced by the respondents. 47.. Situated thus, one has no option but to hold, until rebutted, that the mere fact that some of the vehicles, in question, have been registered with the motor vehicle authorities in Arunachal Pradesh cannot demolish the petitioner's case that the vehicles, in question, were sold by the petitioner on clear understanding with the buyers concerned that the vehicles would be taken out of the State of Arunachal Pradesh to the State of Assam, where the buyers claim to be residents of, and that in pursuance of such contracts, the vehicles did move out of the State of Arunachal Pradesh. Whether sales in all cases must be made to registered dealers and supported by form "C" to avai....
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....e Government or a registered dealer, that is, to an unregistered dealer or an individual person. 52.. Sub-section (2-A) of section 8 provides that in case the sale or purchase of any goods is exempted from tax generally or is subjected to tax, generally, at the rate, which is lower than 4 per cent under the sales tax law of the appropriate State, then, the Central sales tax shall also be nil or, as the case may be, shall be calculated at such a lower rate. Sub-section (3) of section 8, however, places a restriction insofar as sales made to registered dealer under section 8(1)(b) are concerned and provides that the goods must be of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resale by him or, subject to any rule made by the Central Government in this behalf, for use by him in the manufacture and processing of the goods for sale or any mining or in the generation and distribution of electricity or any other form of power or as containers of the descriptions referred to in sub-section (3). Sub-section (4) of section 8 further clarifies that the provisions of section 8(1) shall not apply unless....
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....ever is higher [Section 8(2)(b)]; (ix) Notwithstanding anything contained in section 8(1) or 8(2)(b), if the goods are sold in course of inter-State trade and commerce, the sale or purchase of which is, under the sales tax law of the appropriate State exempted from tax generally or subjected to tax generally at a rate lower than four percent, it shall be either exempted from tax or the tax under the Central Sales Tax Act shall be levied at the lower rate as applicable inside the appropriate 'State' [Section 8(2A)]. (x) Notwithstanding anything contained in section 8(1) to 8(4) of the Central Sales Tax Act, the State Government may, in public interest and subject to such conditions as may be specified by it, exempt any person from payment of tax regarding the inter-State sales or levy a rate lower than that specified in section 8(1) or 8(2). Section 8(5) empowers the State Government, in public interest, to dispense with the requirements of section 8(4)." 56.. As mentioned hereinabove, the power of a State Government to issue a notification under section 8(5) of the Act of 1956 is unquestionably very wide. The State Government may, if I may repeat, exempt or reduce the rate....
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....ll be more than offset by the gain in revenue ultimately derived from outside consumers. The imposition of rates of sales tax is normally influenced by factors political and economic. If the rate is so high as to drive away prospective traders from purchasing a commodity and to resort to other sources of supply, in its own interest the State will adjust the rate to attract purchasers. Again, in a democratic Constitution political forces would operate against the levy of an unduly high rate of tax. The rate of tax on sales of a commodity may not ordinarily be based on arbitrary considerations, but in the light of the facility of trade in a particular commodity the market conditions-internal and external and the likelihood of consumers not being scared away by the price, which includes a high rate of tax. Attention must also be directed to sub-section (5) of section 8 which authorises the State Government, notwithstanding anything contained in section 8, in the public interest to waive tax or impose tax on sales at a lower rate on inter-State trade or commerce. It is clear that the Legislature has contemplated that elasticity of rates consistent with economic forces may be maintained....
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....emption under section 8(5) of the Act of 1956 does not, concedes even Mr. Nabam, arise at all. 61.. It is, now, imperative to note that once a notification under section 8(5) of the Act of 1956 has been issued by the appropriate authority of the State, it cannot be put to naught or be made Here italicised. inoperative by any agent of the Government. It is only the authority, which had granted the exemption and/or concession under sub-section (5) of section 8 of the Act, which can withdraw or modify such exemption or concession by way of another notification issued in this regard. The assessing authorities and/or executive authorities are legally bound to act in terms of the notification issued under section 8(5) of the Act. Since the notification, dated May 2, 2001 (annexure A) aforementioned has not made any distinction between the sales made to registered dealer and sales made to unregistered dealer, no assessing authority or any other executive authority can impose any other condition and/or read therewith any other condition. Since the State Government has reduced the rate of tax in respect of sales made in course of inter-State trade and commerce to any person ....
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....an implementing agency and not the policy maker. This, in turn, clearly indicates that no enquiry, on his own, was made by the assessing authority nor was there any application of mind by the assessing authority and, thus, no satisfaction, as required, was arrived at before issuance of the letter, dated February 7, 2002 by the assessing authority (i.e., the respondent No. 6). Hence, rightly contends the petitioner, prior to the issuance of the show cause notice, a decision had already been taken by the superior officers that such sales were to be charged at the rate of 12 per cent although the notification, dated May 2, 2001 (annexure A) has reduced the rate of Central sales tax to 2 per cent. Further, even a copy of the show cause notice issued to the petitioner was forwarded to the respondent No.2, namely, Commissioner of Tax and Excise, Government of Arunachal Pradesh, for information and necessary action. The powers and function exercised by any officer under the Act has to be exercised after due and proper appreciation of the facts and circumstances of the case and after due application of mind. The exercise of quasi-judicial powers by any officer without application of mind a....
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....of tax, as alleged by him, has taken place, but if such a notice to show cause is issued mechanically, without application of mind, contrary to law or at the behest or in accordance with the decision of a superior authority, such notice is untenable in law. Viewed from this angle, the impugned notice to show cause, for the reasons discussed above, is bound to be held illegal, without jurisdiction and untenable in law. Writ against show cause notice maintainable, if maintainable 67.. It has been contended on behalf of the respondents, as already indicated hereinabove, that against the letter, dated March 14, 2002 (annexure F), and letter, dated May 7, 2002 (annexure G), whereby directions were given that no inter-State sale of motor vehicles at 2 per cent would be allowed and that sales to buyers, who are from outside the State, not being inter-State sale, were to be charged at 12 per cent local sales tax, the petitioner has already preferred an appeal before the respondent No. 4, namely, Deputy Commissioner of Tax and Excise, Government of Arunachal Pradesh, and that during the pendency of this appeal, the petitioner ought not to have approached a writ court and hence, the writ ....
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....urt under article 226 of the Constitution of India. 70.. The present writ application has been filed challenging not only the show cause notice, dated May 27, 2002, but also the communications, dated February 7, 2002, February 27, 2002, March 14, 2002 and May 7, 2002, aforementioned issued by the respondents. The show cause notice is the cumulative effect of the various notices/letters/circulars issued by the respondent authorities denying the benefit of sales tax exemption/concession granted by the notification, dated May 2, 2001 (annexure A) by the State Government under section 8(5) of the Central Sales Tax Act, 1956. Under such circumstances, the show cause notice cannot be read separately, or independent of, the directions contained in the various notices/ letters/circulars under challenge. Hence, the legality and validity of this notice has to be examined, tested and adjudged keeping in view the letters/circulars/notices, dated February 7, 2002, February 27, 2002, March 14, 2002 and May 7, 2002 aforementioned issued by the respondents. While considering the above aspects of the matter, it is apposite to refer to Union of India v. Brij Fertilizer (1993) 3 SCC 564, wherein t....
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....otice, which proceeds on the assumptions, namely, (i) that in order to constitute a contract of sale during the course of inter-State trade and commerce, the contract must be supported by materials in writing, (ii) the vehicles, in question, could have been sold to only registered dealers and not to individuals and/or (iii) that a declaration in form C ought to have been furnished by the petitioner in respect of each sale of vehicle to enable it (i.e., the petitioner) to claim benefits of the notification (annexure "A"), although no such pre-conditions is required to be fulfilled by the petitioner to be able to claim the benefits of the notification (annexure "A"), the very issuance of the show cause notice is, at its very threshold, being on considerations and assumptions of law, which are extraneous and untenable make the notice without jurisdiction and deserves to be interfered with. 74.. Mr. Nabam has referred to Manganese Ore (India) Ltd. [1976] 37 STC 489 (SC) to show as to what constitute a sale in the course of inter-State trade and commerce. In this case, the apex Court has laid down the conditions, which must be satisfied to constitute a sale as a sale in the course of....