TaxTMI 
TaxTMI 
2010 (10) TMI 965
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...., 3824, 3827, 4064, 4101, 4189, 4193, 4194, 4244, 4278, 4326, 4353, 4354, 4356, 4357, 4358, 4367, 4411, 4412, 4415, 4416, 4417, 4481, 4494, 4505, 4506, 4519, 4533, 4534, 4535, 4538, 4541, 4542, 4547, 4548, 4553, 4554, 4599, 4600, 4601, 4607, 4608, 4611, 4612, 4614, 4615, 4616, 4624, 4629, 4630, 4631, 4633, 4646, 4655, 4659, 4660, 4677, 4685, 4686, 4687, 4693, 4694, 4695, 4696, 4698, 4699, 4706, 4713, 4714, 4723, 4724, 4732, 4742, 4743, 4744, 4745, 4746, 4747, 4748, 4753, 4770, 4771, 4772, 4773, 4774, 4777, 4778, 4833, 4850, 4853, 4859, 4860, 4861, 4862, 4874, 4879, 4880, 4900, 4902, 4908, 4913, 4915, 4916, 4917, 4919, 4925, 4926, 4946, 4947, 4952, 4953, 4954, 4957, 4958, 4959, 4979, 5033, 5041, 5048, 5052, 5057, 5058, 5068, 5069, 5072, 5110, 5116, 5123, 5155, 5156, 5220, 5221, 5281, 5327, 5328, 5384, 5405, 5406, 5407, 5432, 5439, 5441, 5457, 5458, 5480, 5481, 5482, 5486, 5487, 5492, 5494, 5498, 5499, 5500, 5509, 5510, 5511, 5516, 5524, 5525, 5526, 5550, 5573, 5575, 5576, 5577, 5579, 5588, 5618, 5666, 5668, 5669, 5670, 5677, 5678, 5679, 5680, 5681, 5682, 5694, 5697, 5698, 5706, 5707, 5708, 5709, 5710, 5726, 5727, 5728, 5729, 5730, 5731, 5732, 5733, 5734, 5738, 5739, 5773, 5774, 5808....
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....of tendu leaves". A tender notice was issued by the respondent-Chhattisgarh State Minor Forest Produce (Trading and Development) Co-op. Federation Limited (for short, "the Federation"). Pursuant to the said tender notice, the petitioners submitted their tender forms for purchase of tendu leaves. On consideration of the tender forms, the petitioners were allotted various tendu leaves lots. Thereafter, purchase agreement under condition No. 7 of the tender notice was executed between the Governor of Chhattisgarh acting through the Conservator of Forest, ex officio General Manager of the Federation. The petitioners were required to pay taxes under the terms of the purchaser's agreement. Thus, these petitions. Shri Rajesh Ranjan Agrawal, learned counsel appearing for the petitioners in W.P. No. 2060 of 2002, W.P. No. 393 of 2003, W.P. No. 218 of 2004, W.P. (T) No. 4646 of 2009, W.P. (T) No. 4900 of 2009 and W.P. (T) No. 4902 of 2009, would submit that the petitioners are registered as exporters under the provisions of the Adhiniyam, 1964 and the Niyamavali, 1966. In addition, they are registered dealers under the State Sales Tax Act as well as the Central Sales Tax Act (for shor....
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....f Chhattisgarh has no jurisdiction to charge the local taxes at the rate of 20 per cent, as the same is contrary to the provisions of the CST Act. He further placed reliance on the decision of the Supreme Court rendered in State of Orissa v. K.B. Saha and Sons Industries Pvt. Ltd. [2007] 7 VST 214 (SC); [2007] 9 SCC 97 to the effect that the identical issues were involved in the cases and the transaction in question was held as inter-State sale. Shri Agrawal would further submit that the definition of "exporter of tendu leaves" is given under rule 2(5) of the Niyamavali, 1966. Condition No. 5 of annexure I and Condition No. 12 of annexure I of the tender notice wherein it is provided that if there is a breach of Adhiniyam, 1964 and Niyamavali, 1966 or agreement, as the case may be, the exporter would be punished under section 15 of the Adhiniyam, 1964 and also blacklisted for five years, make it clear that the movement was a part of covenant of the agreement. Sale certificate issued in form L is only in favour of the exporters, who are required to export the tendu leaves outside the State. Form K read with rule 8(5) of the Niyamavali, 1966 clarifies that the Federation has compl....
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....chaser's agreement. Under the agreement, petitioners were required to make payment on instalments on due dates. The petitioners were required to pay the purchase price along with sales tax, surcharge and forest development tax and thereupon the petitioners were directed to take delivery on the basis of delivery order. Delivery order dated November 20, 2002 issued from the office of Managing Director, Zila Vanopaj Sahakari Sangh Maryadit, East Bhanupratappur would show that the consignment of tendu leaves was delivered under TP-4 for being transported outside the State of Chhattisgarh. Shri Shrivastava would next submit that the sale of tendu leaves of the Federation and purchase of the same by the petitioners is in the course of inter-State trade and commerce and, as such, the same are exigible to tax provides for restriction on purchase or transport of tendu leaves. Sub-section (2)(b) of section 5 provides for grant of TP and further that from the place where tendu leaves had grown, tendu leaves may move inside the State only for the purpose of manufacturing of bidis and it may be moved outside the State by any person after obtaining necessary permission. This section has t....
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....al and Co. v. State of Madhya Pradesh AIR 1970 SC 129, the Supreme Court held that "under the rules, an exporter means a person who sells tendu leaves to one having business outside the State or who exports them for the manufacture by him of bidis outside the State". The Supreme Court in various cases has held that even the movement, which is incidental to the contract of sale would come within the meaning of inter-State sale. In support of his contention that the sale of tendu leaves from the stage of production till consumption outside the State was under control of the State Government, he relies on the decision of the Supreme Court rendered in Singareni Collieries Co. Ltd. v. Commissioner of Commercial Taxes, Hyderabad [1966] 17 STC 197 (SC); AIR 1966 SC 563. He further placed reliance on the decision rendered in Commissioner of Sales Tax, Maharashtra State, Bombay v. Raisaheb Rekchand Mohta Spinning & Weaving Mills Private Limited [1991] 80 STC 60 (Bom), Oil India Ltd. v. Superintendent of Taxes [1975] 35 STC 445 (SC); [1975] 1 SCC 733, English Electric Company of India Ltd. v. Deputy Commercial Tax Officer [1976] 38 STC 475 (SC); [1976] 4 SCC 460, Union of India v. K. G....
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....-State sale under section 3(a) of the CST Act. The Supreme Court prior to enactment of the CST Act interpreted article 286(2) of the Constitution of India in Bengal Immunity Company Limited v. State of Bihar [1955] 6 STC 446 (SC); AIR 1955 SC 661. The test was thereafter affirmed in Endupuri Narasimham and Son v. State of Orissa [1961] 12 STC 282 (SC); AIR 1961 SC 1344 holding that the test was "A sale could be said to be in the course of inter-State trade only if two conditions concur; (i) A sale of goods, and (ii) A transport of those goods from one State to another under the contract of sale." The Supreme Court reiterated the test laid down in Bengal Immunity Company Limited [1955] 6 STC 446 (SC); AIR 1955 SC 661 in Cement Marketing Company India (Private) Ltd. v. State of Mysore [1963] 14 STC 175 (SC); AIR 1963 SC 980 and State of Jammu and Kashmir v. Caltex (India) Ltd. [1966] 17 STC 612 (SC); AIR 1966 SC 1350 that the transport or movement has to be under the contract of sale, i.e., to say the transactions themselves involved the movement. The test appears to have been diluted in Oil India Ltd. [1975] 35 STC 445 (SC); [1975] 1 SCC 733, where the Supreme Court h....
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....t. The provisions of section 12A are merely to ensure that the monopoly created in respect of trading in tendu leaves in the State Government by section 5 is not circumvented. The provisions of the Adhiniyam, 1964 and the Niyamavali, 1966 as also the forms contemplated that the application for grant of TP is made by the purchaser in respect of goods which are already purchased and consequently the movement is not pursuant to the contract of sale or purchase. The sale/purchase eligible to tax, which is subject-matter of the petition, is the sale by the Federation to tenderer/purchaser and not further sale by the purchaser. Section 12A of the Adhiniyam, 1964 deals with further sale by the tenderer. Section 5(1) (Explanation 1) in terms excludes sale by the Federation to tenderer from the rigour of section 5(1). Further section 12A is nearly a regulatory provision to ensure that the monopoly trading is not violated. This is not a condition imposed by the contract but a requirement of a law. Equally the requirement of TP under sub-section (2) of section 5 of the Adhiniyam, 1964 is a statutory requirement which has to be complied with by all the dealers of the tendu leaves. It is ....
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....purchaser opts for payment by instalments then the tendu leaves of the value of the instalments are released by the Federation in presence of the purchaser. This process is adopted to ensure regular payment and during plucking till godowning and thereafter the entire risk for the goods is of the purchaser therefore is required to ensure the goods at his own cost. * After plucking the leaves, they are collected in a bundle of 50 leaves each and 1000 bundles of such leaves become 1 unit bag. These plucking is done by the purchaser and the purchaser or his agent remains present in the jungle while the process of plucking. The wages/amount as charges for such plucking is paid through the society. * After the leaves have been plucked by the members, and collected, the purchasers are bound to remove the same from the lots within 24 hours to their respective godowns for processing. The entire cost of transporting the leaves from the lots to the processing places is born by the purchaser. * These plucking is being done by the members of primary societies. * The processing of leaves like moistening, bagging, etc., are being done by the purchaser himself, through the member of th....
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.... come under regulation of the State of Madhya Pradesh by virtue of the Adhiniyam, 1964, with the Niyamavali, 1966. Plucking and trading of tendu leaves normally take place in summer season. Accordingly, the tender notices are issued in the month of May or June of every year for sale of tendu leaves. Under section 4 of the Adhiniyam, 1964 there is a provision for appointment of agents on behalf of the State Government. Section 5 provides for restriction on purchase or transport of tendu leaves that no person other than the State Government, an officer of State Government authorized in writing in that behalf or an agent in respect of the unit, in which the leaves have grown, would purchase or transport tendu leaves. Sub-section (2) of section 5, which is a non obstante clause provides that tendu leaves purchased from the State Government or any officer or agent specified in said sub-section by any person for manufacturer of bidis within the State or by any person for sale outside the State may be transported by such person outside the unit in accordance with the terms and conditions of a permit to be issued in that behalf by such authority in such manner and on payment of....
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....to sattedar or mazdoors; and (iv) for transport outside the State. The application was to be made in form D to the Divisional Forest Officer who was held as competent to grant the permit or shall authorize any officer or person to issue the permit. There were certain conditions as provided under sub-rule (3) of rule 4 stating that the tendu leaves shall be transported only by the route specified in the permit, further the transportation of tendu leaves will not take place after sunset and before sunrise. There was a provision for cancellation of TP in case of misuse or likely to be misused of TP. Rule 8 of the Niyamavali, 1966 provides for registration for manufacturers of bidis and/or exporters of tendu leaves. The petitioners are registered dealers under the provisions of sales tax of the concerned States and that of State of Chhattisgarh. In addition, they were registered under the provisions of the Central Sales Tax (Registration and Turnover) Rules, 1957 also. They are also registered as "exporters of tendu leaves" under the provisions of section 11 of the Adhiniyam, 1964, read with rule 8 of the Niyamavali, 1966. There is a clear provision that a purchaser may be reg....
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....aves stating that the delivery of leaves to the purchaser will be made only after full payment of the amount of instalment due, has been made. Condition No. 11(v)(a) provides that if the purchaser wants to take open delivery of the leaves of the lots after full payment of the due amount of first instalment, he shall give an application to this effect to the conservator of forests. On an application by the purchaser, the conservator of forests shall permit open delivery to the purchaser, according to the procedure prescribed by the Federation. One fourth of the total notified quantity of the lot shall be delivered under the open delivery. While giving the delivery, no selection of bags from the lot shall be permitted and the delivery shall be given from that one side of the stack only from which the delivery has been commenced. Condition No. 12 of annexure I of the tender notice provides for breach of Adhiniyam, etc., which reads as under: "12. Breach of Adhiniyam, etc. A purchaser, who commits any breach of provisions of Adhiniyam, Niyamavali and/or any condition of the purchaser's agreement as a result of which he is punished under section 15 of the Adhiniyam or wh....
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....enters mentioned in 4.1 (a) above. The leaves found on unauthorized phad/place will be forfeited in addition to the action under Adhiniyam and this contract. (c) No collection centre shall be allowed to be opened within the boundaries of reserved/protected forests except in forest village or rocky areas/standy bed or rivers and nalas. Collection centres shall not be established beyond, half kilometre of village habitation. Permission for opening collection centres within the boundaries of reserved/protected forests in the places other than places mentioned above, may if necessary under special circumstances, be granted by the concerned conservator of forests on the recommendation of the concerned Managing Director, District Union. II. The primary society will collect the tendu leaves from the Government lands and forests lands and pay the collection rate per standard bag fixed by the Government and purchase the green unbagged tendu leaves from the private producers during collection season. III. Purchaser shall appoint representative for each collection centre. Purchaser will submit list of such representatives along with samples of their attested signatures, addresses and....
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.... any officer authorized by them. The inspecting officer will deliver his decision to the representative of the purchaser on the collection centre only which will be final and binding on the purchaser. If the purchaser does not take the delivery of tendupatta within next two days of the decision tendu patta shall be on the purchaser's risk and action may be taken according to the Condition V(A) and (B). VII. If the purchaser is offered any quantity in addition to notified quantity by the primary society, the purchaser is bound to take the delivery of additional quantity on phad. VIII. The purchaser will himself treat, bag, load, transport and godown the leaves after taking the delivery of the green leaves and bear the expenses on these works himself. The purchaser is also responsible for the proper treatment of the phad to protect the leaves from termite and other insects. So the responsibility of any damage to the leaves from termite and other insects between collection and delivery is of the purchaser only. IX. In case of any dispute regarding boundaries of primary societies, the decision of Managing Director of District Union shall be final and binding on the purchas....
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....Director, District Union or any officer authorized by him for the purpose after executing the tripartite agreement (annexure VII) enclosed with this tender notice. The permission to transport the leaves from phad to godowns will be granted after it only. For the purpose of inspection in the godowns, stacking of the tendu leaves will be done minimum 2 feet away from the godown walls. If the Managing Director, District Union directs the purchaser through a letter by March 31, 2009 or 15 days from the date of purchaser appointment order whichever is later to take the godowns of Forest Department Federation/primary society/others on rent, then he will be bound to do so on the rent of Rs. 15 per actual bag but he will not be required to execute the tripartite agreement in annexure VII and can keep the leaves in the godown till April 15, 2010, but if the purchaser wants, he can store the leaves in his own godown under double lock of purchaser and Federation after paying the rent of 15 per actual bag. The purchaser will have to make the payment of godown rent on the basis of storage capacity of the godown fixed by the Managing Director, District Union by May 15, 2009 in one instalment." ....
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....rvants and agents any act prohibited by/ or under the provisions of the said Adhiniyam and the said Niyamavali in so far as they are not inconsistent in the context of this agreement. Clause 20 of the agreement provides for first charge. The amount of purchase price or the balance thereof as the case may be as is due under the terms and conditions of the tender notice and the terms and conditions of this agreement, the Adhiniyam and the rules, shall form first charge on the tendu leaves taken delivery of by the purchaser. Sub-clause (2) of clause 20 further provides that until the first charge is fully discharged, the purchaser shall not export or utilize for manufacture of bidies or otherwise dispose of such tendu leaves. Terms and conditions of the tender notice and the agreement in all the years is the same. Now the question for consideration before this court is as to whether the sale of tendu leaves from the lots of tendu leaves to the petitioners, who are registered as exporter of tendu leaves under the Adhiniyam, 1964 and the Niyamavali, 1966, is in the course of inter-State trade and amounts to inter-State sale. Further, whether the sale of tendu leaves preceding t....
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....ual exportation are not sufficient to constitute a sale in the course of export, for a sale by export involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea. Knowledge that the goods purchased are intended to be exported does not make the sale and export parts of the same transaction, nor does the sale of the quota with the sale of the goods lead to that result". The Supreme Court further held that the transaction of sale which is a preliminary to export of the commodity sold may be regarded as a sale for export, but is not necessarily to be regarded as one in the course of export, unless the sale occasions export. And to occasion export there must exist such a bond between the contract of sale and the actual exportation, that each link is inextricably connected with the one immediately preceding it. Thus, I do not agree with the contentions of the petitioners that the provisions of the Adhiniyam, 1964 and the Niyamavali, 1966 are part of the agreement, i.e., contract of sale. Requirement of TP for movement of tendu leaves i....
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....ale or the terms and conditions of the purchaser's agreement, which obliges the exporters to move tendu leaves purchased by them, under terms of the contract of sale, outside the State. It is indisputable that tender notice with its annexures is part of the agreement as discussed in the preceding paras of this judgment. Condition No. 11 of annexure I of the tender notice clearly states that delivery of leaves has to be made on full payment on the basis of certificate granted by the Conservator of Forest. There is no mention that the delivery has to be taken for exporting tendu leaves outside the State, either in sale certificate or delivery order or after issue of TP. Condition No. 12 of annexure 1 of the tender notice provides for breach of Adhiniyam, Niyamavali or condition of the purchaser's agreement, which may lead to termination of the agreement and blacklisting. Termination of the agreement is on account of non-compliance of the provisions of the Adhiniyam, 1964 and the Niyamavali, 1966, which are statutory in nature and are applicable to all traders, whether they are registered as exporters or manufacturers of bidis within the State. The blacklisting is a part....
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....e that the petitioners are obliged to move leaves purchased under the contract of sale outside the State. Clause 8 of form K only requires a declaration to the extent of quantity of tendu leaves exported annually during the previous two years. This does not have any bearing on the contract of sale. Contention of Shri Agrawal, learned counsel appearing for the petitioners that memo dated October 10, 2001 issued from the office of the Commissioner, Commercial Tax, Chhattisgarh Raipur, wherein the sale of industrial bamboos for outside the State for using in ITC, Bhadrachalam, Andhra Pradesh has been treated as inter-State sale, is not applicable, to the facts of the instant cases, as the facts are different. In this batch of cases as the movement of leaves was not as a result or under covenant of the contract. Thus, I do not agree with the contention of Shri Agrawal. The delivery order dated November 20, 2002 from the office of Zila Vanopaj Sahakari Sangh Maryadit, East Bhanupratappur, was issued after sale was complete. Neither contract of sale nor TP provides for any control or restriction on the petitioners in respect of diversion, transfer of sale of tendu leaves to any per....
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....1966 SC 563 in the facts where an allottee of coal could not use it otherwise than in accordance with the conditions of the order of allotment, nor divert or transfer any such coal to any other person except under a written authority from the Central Government and no person could acquire or purchase or agree to acquire or purchase coal from a colliery, and no colliery owner could despatch or agree to despatch or transport any coal from the colliery except under the authority and in accordance with the authority of the Central Government held that the supply, use and disposal of coal were, therefore, regulated from the stage of production till consumption, held as under (page 210 in 17 STC): "22. Coal in the appeals under review was transported from the colliery of the Company to the consumers outside the taxing State, as a result of the covenant or incident of the contract of sale and therefore the sale must be regarded as an inter-State sale and not liable to be taxed under the Hyderabad General Sales Tax Act, 1950. . ." A Constitution Bench of the Supreme Court in Caltex (India) Ltd. [1966] 17 STC 612 (SC); AIR 1966 SC 1350, observed as under (page 619 in 17 STC): "6. A....
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....irst part of clause (6) of article 19. That would also be the position in respect of article 304(b). But since the requirement of these provisions is the same the yardstick of reasonableness would be common to all these cases. It is well recognised that when an enactment is found to infringe any of the fundamental rights guaranteed under article 19(1), it must be held to be invalid unless those who support it can bring it under the protective provisions of clause (5) or clause (6) of that article. To do so, the burden is on those who seek that protection and not on the citizen to show that the restrictive enactment is invalid. (Cf. Saghir Ahmed v. State of U.P. [1955] 1 SCR 707; AIR 1954 SC 728 and Khyerbari Tea Co. Ltd. v. State of Assam [1964] 5 SCR 975 at page 1003; (AIR 1964 SC 925 at pages 938-939) 13. In our view reading of section 5(2) along with rule 9 of the said Rules, what they are intended to require is that a manufacturer must have a permit to move the leaves purchased by him from the unit or units where he has purchased them to his warehouse outside and from there to his branches and also when he transports them to his sattedars. But, no such permit was intended to....
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....ove the goods outside the State of Bihar. Another Constitution Bench of the Supreme Court in State of Madhya Pradesh v. Chhotabhai Jethabhai Patel and Co. AIR 1972 SC 971, affirmed the observations of the Supreme Court in Vrajlal Manilal and Co. AIR 1970 SC 129. A Bench of two honourable judges of the Supreme Court in Oil India Ltd. [1975] 35 STC 445 (SC); [1975] 1 SCC 733, observed as under (page 449 in 35 STC): "9. Even though clause 7 of the supplemental agreement does not expressly provide for movement of the goods, it is clear that the parties envisaged the movement of crude oil in pursuance of the contract from the State of Assam to the State of Bihar. In other words, the movement of crude oil from the State of Assam to the State of Bihar was an incident of the contract of sale. No matter in which State the property in the goods passes, a sale which occasions 'movement of goods from one State to another is a sale in the course of inter-State trade'. The inter-State movement must be the result of a covenant express or implied in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the inter-State movement in order....
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....ance of the agreement to sell nor is the movement occasioned by the sale. The seller himself takes the goods to State Y and sells the goods there. This is, therefore, purely an internal sale which takes place in State Y and falls beyond the purview of section 3(a) of the Central Sales Tax Act not being an inter-State sale. Case No. III.-B, a purchaser in State Y, comes to State X and purchases the goods and pays the price thereof. After having purchased the goods he then books the goods from State X to State Y in his own name. This is also a case where the sale is purely an internal sale having taken place in State X and the movement of goods is not occasioned by the sale but takes place after the property is purchased by B and becomes his property." Thereafter, a Bench of three honourable judges of the Supreme Court in K.G. Khosla and Co. [1979] 43 STC 457 (SC) held that it is not true to say that for the purposes of section 3(a) of the Central Sales Tax Act, it is necessary that the contract of sale must itself provide for and cause the movement of goods or that the movement of goods must be occasioned specifically in accordance with the terms of the contract of sale. His L....
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....asses in one State or another . . ." In Commissioner of Sales Tax, U.P. v. Bakhtawar Lal Kailash Chand Arhti [1992] 87 STC 196 (SC); [1992] 3 SCC 750, a Bench of three honourable judges, relying on K.G. Khosla & Co. [1979] 43 STC 457 (SC) held that "it is immaterial whether a completed sale precedes the movement of goods or follows the movement of goods, or for that matter, takes place while the goods are in transit. What is important is that the movement of goods and the sale must be inseparably connected". Recently a Constitution Bench of the Supreme Court in National Thermal Power Corporation Ltd. [2002] 127 STC 280 (SC); [2002] 5 SCC 203, held as under (page 300 in 127 STC): "25. It is well-settled by a catena of decisions of this court 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 ....
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....ioned by the sale or should be incidental thereto. What is important is that the movement of goods and the sale must be inseparably connected. It is not necessary that there should be an existence of contract of sale incorporating the express or implied provision regarding inter-State movement of goods. Even if hypothetically it is accepted that such a requirement is necessary in the facts of the present case such implied stipulation does exist. This is referable to clause 3.7 of the agreement." In clause 7 of the agreement, which provides for facility of delivery of leaves against bank guarantee, does not state anywhere that if the export deal is finalized thereafter only the bank guarantee will be released. In DCM Limited [2009] 21 VST 417 (SC); [2009] 4 SCC 231, the relevant facts were that clause 7 of the contract also indicates that the chemicals were to be sold in the territories outside Delhi. The assignment of specific territories is indicated in clause 1. Under the contract, the purchasing dealer(s) was required to submit monthly stock of sales to the assessee. Every month, the purchasing dealer was required to submit a market report to the assessee. Under the contra....
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....s of the petitioner participated in the auction in various depots and thereafter being resident of Maharashtra State obtained transit permit for taking timbers to the State of Madhya Pradesh. The petitioners applied for C certificate on the ground that the movement of timber, on the basis transit permit, was occasioned on account of sale of timbers. Thus, they are entitled to form C. The Division Bench of the High Court of Madhya Pradesh held as under: "16. . . . It is also not disputed that the procedure is that the form with earnest money has to be filled in and if the bid is accepted signature of the highest bidder is taken on the bid list and it is also not disputed that when a certificate is issued showing the price and thereafter, the price is paid and the delivery of goods is taken. It is also not in dispute that what is sold is not unascertained goods but are ascertained goods as the separate lots are unnumbered and auctions are held lotwise and for each lot bids are invited and when the highest bid is accepted a memorandum is prepared, the signature of the highest bidder is taken and a certificate is issued. In view of this procedure which is not in dispute, it is clear....
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.... down by the Constitution Benches of the Supreme Court in Endupuri Narasimham [1961] 12 STC 282 (SC); AIR 1961 SC 1344, Cement Marketing [1963] 14 STC 175 (SC); AIR 1963 SC 980, Tata Engineering and Locomotive Co. Ltd. [1970] 26 STC 354 (SC), Caltex (India) Ltd. [1966] 17 STC 612 (SC); AIR 1966 SC 1350 and National Thermal Power Corporation Ltd. [2002] 127 STC 280 (SC); [2002] 5 SCC 203 and other cases are that "movement of goods which takes place independently of a contract of sale would not fall within the meaning of inter-State sale". If there is no contract of sale preceding the movement of goods, obviously the movement cannot be attributed to the contract of 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, the transaction would be intra-State sale. The concept of "pursuant to", "incidental" and "relatable" developed in Oil India Ltd. [1975] 35 STC 445 (SC); [1975] 1 SCC 733 and K.G. Khosla & Co. [1979] 43 STC 457 (SC). In National Thermal Power Corporation Ltd. [2002] 127 STC 280 (SC); [2002] 5 SCC 203, the Supreme Court noted the obser....