JUDGMENT Prakash Krishna, J.
1. This revision is directed against the order of the Sales Tax Tribunal dated 31st August, 1992, passed in Second Appeal No. 1469 of 1978 for the assessment year 1972-73.
2. The dispute in the present revision relates to the Assessment Year, 1972-73 under Central Sales Tax Act. The applicant is a registered dealer and carried on the business of manufacturing and selling of yarn. Its factory is situated at Modi Nagar Ghaziabad. It has also got its Sales Depot at Delhi.
3. The only point involved in the present revision is with regard to rejection of its claim of stock transfer to Delhi Depot to the extent of Rs. 30,22,371.00. The assessing authority has accepted the accounts books of the dealer/applicant, but it has disallowed the stock transfer to the extent of the amount indicated above.
4. The assessing authority in the assessment year has found that the aforesaid goods were sold by its depot on the same day as soon as they reached to Delhi. He after examining the accounts books of the dealer/applicant has also come to the conclusion that the goods were directly supplied by the dealer to the customers and thereafter necessary entries were made in the accounts books at Depot. An adverse inference was drawn by him from the fact that the goods to question were sent afternoon, which is apparent from the gate pass from Modi Nagar to Delhi and were sold at Delhi on the same day. This was taken by him a strong circumstance to conclude that the movement of goods from Modi Nagar to Delhi was in pursuance of prior order placed by the customers.
5. The appellate authority by its order dated 24th September, 1977 has come to the conclusion that from the facts as found by the assessing authority, it can be said that the movement of goods from one State to another State is established and there was nexus of movement of goods to the ultimate sale. However, the appeal was allowed on the ground that the department has failed to prove that there was prior order which occasioned the movement of goods. This order was initially confirmed by the Sales Tax Tribunal in Second Appeal by its order dated 22nd of February, 1986, but was set aside by this court in STR No. 385 of 1986 decided on 21st August, 1987.
6. This court allowed the revision filed by the department against the order of the Tribunal as well as that of the appellate authority and remanded the matter for reconsideration to the Tribunal in the light of the judgment of the Supreme Court given in the case of Sahney Steel and Press Works Ltd. v. Commercial Tax Officers and Ors., 1986 UPTC 105. The Tribunal after remand this time allowed the appeal filed by the department and held that the transaction in question is inter State sale and it is not a case of stock transfer. This order of the Tribunal is under challenge in the present revision.
7. Heard learned counsel for the parties and perused the record.
8. The Supreme Court in the case of Balabha Gas Hulas Chand and Anr. v. State of Orissa 1976 (37) Sales Tax Cases 207 has held that a sale or purchase of goods shall be deemed to take place in the course of inter Stale trade or commerce, if the sale or purchase; (a) occasions the movement of goods from one State to another or (b) is effected by a transfer of documents of title to the goods during their movement from one State of another, in view of Section 3 of the Central Sales Tax Act. Analysing Clause {a) of Section 3 of Central Sales Tax Act it was held that before Section 3 can apply, the following facts must be established (i) that there is sale or purchase of the goods and (ii) that the sale occasions the movement of goods from one State to another. It has been held that the following conditions must be satisfied before a sale can be said to take place in the course of inter State trade or commerce (1) that there is an agreement to sell which contains a stipulation express or implied regarding movement of the goods from one State to another (ii) that in pursuance of the said contract the goods in fact moved from one State to another;(iii) that ultimately a concluded sale takes place in the State where the goods are sent which must be different from the State from which the goods moved.
9. The law thus has been clarified by the Supreme Court in above case. In the case in hand even the appellate authority found that the condition No. (ii) and (iii) stands satisfied in the present case. However, the appeal was allowed on the ground that there is no evidence to show that the goods moved front one State to another in pursuance of a prior order by the customer. The Tribunal has set aside this finding in its order on the basis of the material on record. It has come to the conclusion that the goods in question moved from Modi Nagar to Delhi in pursuance of prior agreement or order. This is essentially a question of fact.
10. Learned counsel for the applicant has placed reliance upon certain decisions and submitted that no inference of prior contract can be drawn from the mere fact that the goods were sold by the depot on the same day. In the argument of the learned counsel has referred extensively the findings recorded by the Tribunal in its earlier order. An argument was made by him that this court while remanding the case did not set aside the judgment of the Tribunal, therefore, its earlier order should taken into consideration. I have given my carefully, consideration to the above submissions and find no merit therein. This court in expressed words has stated that the revision is allowed and the order of the Tribunal dated 21st February, 1998 is set aside and the case is remanded to the Tribunal with a direction that it will record a clear finding whether to the facts of the instant case the judgment of the Supreme Court in the ease of Sahaney Steel and Press Works Ltd. is applicable or not Since the entire order of the Tribunal was set aside by the High Court, I find no justification to bank upon the findings recorded by the Tribunal in its earlier order before the remand by the High Court. The emphasis laid by the learned counsel on the earlier order of the Tribunal is misplaced one. The Tribunal after remand has recorded fresh findings in the light of the Judgment of the Supreme Court in the case of Sahney Steel and Press Works Limited (supra) in pursuance of the order passed by the High Court.
11. The Tribunal has recorded a finding that from the accounts books it is clear that the yarn of Rs. 5,99,390-00 was sold on the same day by Delhi depot on which it was sent from Modi Nagar. There was no opening or closing stock of the said quality of yarn at Delhi depot. The remaining transaction of Rs, 24.22,879/- of yarn, on verification from the accounts hooks it transpired that the said yarn was also sold on the same day by the Delhi depot on which it was despatched from Modi Nagar. It is also admitted that the depot of the applicant at Delhi is situate at such a place, where the movement of heavy transport vehicles is prohibited up to 7.00 p.m. The goods were despatched after 2.00 p.m. from Modi Nagar and must have been reached after 7.00 p.m. on the same day. The authorities below have drawn an inference of implied contract which occasions movement of goods from Modi Nagar to Delhi from the above admitted fact. Sale of the entire goods reaching at the depot after 7.00 p.m. on the same day, itself speaks a lot. The inference by the Tribunal is plausible one. By no stretch of imagination it can be said that the inference drawn by the Tribunal is arbitrary. Much emphasis was laid by the learned counsel that no written contract was proved by the department and as such the Tribunal has committed illegality in holding that the transaction in question is inter State transaction. The said argument has no legs to stand. It is not a requirement of law that the contract should be in writing or express. The assessing authorities as well as by Tribunal from the undisputed facts have rightly drawn inference of prior agreement or order which occasioned the movements of goods from Modi Nagar to Delhi. Strong reliance was placed by the learned counsel that in such circumstances it can not be said that it is a case of inter State sale, on the case of Manohar Lal Hira Lal (P) Ltd. v. CST 1990 UPTC 427. On a close reading of the aforesaid judgment it is clear that the High Court remanded the matter to the Tribunal as it failed to record a finding on the crucial question that the movement of goods from Ghaziabad to Delhi was made under a prior arrangement, therefore, the said case does not support the argument of the learned counsel for the applicant.
12. Tata Engineering & Locomotive Company Limited v. Asstt. Commissioner of Commercial Tax 1970 UPTC 265 (SC) was relied upon by the learned counsel for the applicant. The said ruling has no application to the facts of the present case. On the facts of that case it was held by the Supreme Court that appropriation of vehicles was done at stock yards through specification of the engine and the chassis number. It was open to the dealer till then to allot any vehicle to any purchaser and to transfer the vehicles from one stock yard to another. It is not a case of movement of goods in pursuance of prior order and it is case of stock transfer and not inter State sale. In the present case the facts are entirely different, therefore, this ruling has no application. For the same reason the judgment of this court in the case of Sarshadi Lal Enterprises Ltd. v. Commissioner of Trade Tax 2002, UPTC 1075 is not applicable. In these cases it was held that proved absence of any firm orders, indicated that an allocation of letters and statements furnished by she dealers did not themselves bring about transactions of sale within the meaning of Section 2(g) of the U.P. Sales Tax Act. It was held that the movement of vehicles from the works place to the stock yard was not occasioned by any covenant or incident of contract of sale as there was no appropriation of goods.
13. Further reliance was placed on Commissioner of Sales Tax v. Delhi Steel Industries 1981 UPTC 154 and Commissioner of Sales Tax v. Hindustan Aluminum Corporation Ltd. 1981 UPTC 531. Both these, cases were decided under different facts and circumstances and have no relevancy to the facts involved in the present case.
14. The Tribunal in the case in hand has recorded a specific finding that on the facts, it is established that the goods in question were sold in its entirety within few hours by the depot as soon as it reached from Modi Nagar to Delhi. This is a finding of fact and can not be challenged except on limited grounds such as perversity. The applicant was unable to point out any perversity in the said finding. In view of the said finding, no question of law is involved as all the three ingredients for holding transaction as inter State transaction exits in the present case.
15. In the result there is no merit in the revision. The revision is dismissed with costs.