TMI Blog1975 (8) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... will continue thereafter also unless it is terminated by either party by giving not less than one year's notice. (b) The naphtha to be supplied to the petitioner-company is to be of specified quality. (c) The quantity of naphtha to be supplied will be 95,000 tonnes in the first year, 1,70,000 tonnes in the second year, 2,00,000 tonnes in the third year, 2,25,000 tonnes in the fourth year, and 2,50,000 tonnes in the subsequent years. The supply is to be made in parcels of agreed size against the petitioner's indent in writing. (d) Naphtha is to be supplied through a pipe-line constructed at the cost of the IOC from Barauni to Kanpur. At Kanpur it has to be first stored in the storage tank built by the IOC and from this storage tank it will be piped to the storage tanks of the petitioner. (e) The price of naphtha is to be fixed by the Government of India, failing which it is to be fixed by mutual negotiation. (f) Besides the price fixed or agreed, the petitioner-company has to pay to the IOC freight/transfer charges, excise duty and all other taxes including the sales tax. (g) The cost of transfer of naphtha through pipe-line from Barauni refinery to the petitioner's fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in Bihar. In other words, the challenge is that the tax levied under the U.P. Sales Tax Act on the turnover of naphtha is wholly without jurisdiction inasmuch as the provisions of the U.P. Sales Tax Act do not apply at all. The first hurdle that the petitioner-company has to cross is whether it is entitled to maintain this petition. Under the U.P. Sales Tax Act, tax is levied on a dealer effecting sale. The dealer in the instant case is the IOC and the tax has been levied upon it. Ordinarily it is the dealer alone who can question the validity or quantum of tax. The petitioner is not the dealer even though it is liable to pay tax to the IOC under the agreement. The contention of Mr. Basu, the learned counsel for the petitioner, is that even though the company is not a dealer, as defined in the U.P. Sales Tax Act, yet it is the aggrieved person because the tax has ultimately to be borne by it. It is, therefore, entitled to maintain this petition. It is further urged that because the petitioner is not a dealer it cannot avail of the statutory remedies of appeal, etc., provided under the U.P. Sales Tax Act nor can it file a suit to challenge the assessment order by virtue of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, it will intervene ex debito justitiae, in justice to the applicant. When application is made by a stranger it considers whether the public interest demands its intervention. In either case, it is a matter which rests ultimately in the discretion of the court." Lord Parker, J., in a concurrent judgment, added the following observations: "As regards the second point, that certiorari will not lie here in that Mr. Greenbaum was not a person aggrieved, I am unable to accept Mr. Lawson's argument. One starts with this that the remedy by way of certiorari is a discretionary remedy. Anybody can apply for it-a member of the public who has been inconvenienced, or a particular party or person who has a particular grievance of his own. If the application is made by what for convenience one may call a stranger, the remedy is purely discretionary. Where, however, it is made by a person who has a particular grievance of his own, whether as a party or otherwise, then the remedy lies ex debito justitiae, and that I think, has always been the position from 1869............ The remedy will be granted whenever the applicant has shown a particular grievance of his own beyond some inconvenience su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g place in the course of interState trade or commerce is taxable only by a law framed by the Parliament. The Parliament has since enacted such a law called the Central Sales Tax Act, 1956. This Act seeks to levy tax on sales or purchases of goods taking place in the course of inter-State trade or commerce. Section 3 of that Act defines an inter-State sale or purchase of goods in the following words: "A sale or purchase of goods shall be deemed to take place in the course of inter-State 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 to another." A plain reading of this definition shows very clearly that if the movement of goods takes place from one State to another in pursuance of or as a consequence of sale or an agreement of sale, such a sale is an inter-State sale. It is immaterial where the sale materialises, namely, where the property in goods passes from the seller to the buyer. In the instant case, there is a standing agreement between the petitioner-company and the IOC under which certain stocks of raw naphtha a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods being diverted by the assessee for any other purpose and, therefore, the sale took place in the course of import of goods within section 5(2) of the Act and exempt from taxation." The same is the situation here. The stocks of raw naphtha were put into the pipe-line in Bihar and ultimately delivered to the petitioner-company at Kanpur under a prior agreement of sale. There was no chance of the goods being diverted to any other person. The contract of sale between the parties, therefore, occasioned the movement of goods from Barauni to Kanpur. Such sales are, therefore, clearly inter-State sales as defined in section 3(a) of the Central Sales Tax Act. A recent decision of the Supreme Court in Oil India Ltd. v. Superintendent of Taxes[1975] 35 S.T.C. 445 (S.C.); A.I.R. 1975 S.C. 887. completely covers the present case. There crude oil was carried from Assam through the pipe-lines specially constructed by the assessee to the refinery at Barauni in Bihar and there the oil was pumped and delivered to the Indian Oil Corporation. The construction of the pipelines was undertaken in pursuance of an agreement and for the specific purpose of transporting crude oil. It was held t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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