R.N.Misra, J. - (1.)BY order dated 28.8.1975, on an application made by the Commissioner of Sales -Tax under Section 24(2)(b) of the Orissa Sales Tax Act, 1947 (hereinafter referred to as the 'Act'), this Court called upon the Sales Tax Tribunal to state a case and refer the following two questions for opinion of the Court:
(1) Whether on the facts and in the circumstances of the case, the Tribunal was correct in coming to the conclusion that the transactions were not exigible to Orissa Sales Tax? and

(2) Whether on the facts and in the circumstances of the case, the annulment of penalty under Section 12(5) of the Act was justified? Pursuant to the direction, a case has been stated.

(2.)ASSESSEE is M/s. Royal Half -tone Company of Calcutta and the relevant periods are 1962 -63, 1963 -64 and 1964 -65 (financial years) Assessee manufactured and sold printing blocks, coloured covers and printed designs to be used as book covers. During the relevant periods, Assessee supplied these materials to the Orissa Government Press, the Orissa Text Book Press and many other Government Offices as also to private parties. Up to July, 1963, representatives of the Assessee used to visit Cuttack, obtain orders from the customers and used to sell the goods to them in terms of orders and specifications by effecting delivery of the goods to the buyers. From July, 1963, Assessee opened a branch at Cuttack and then started manufacturing of printing blocks at Cuttack itself.
The Assessing Officer found that the Assessee supplied various items of goods to several buyers during the relevant period within the State of Orissa. Orders used to be received at Cuttack and goods were also delivered at Cuttack. Bills were prepared after approval of the goods by the buyers.

One Sri Nihar Ranjan Das who was working as a Manager of the lessees stated to the Assessing Officer that he used to receive blocks, books and printing materials from Calcutta and sold the same at Cuttack. Similarly one Sri Tushar Mitra who was the previous Manager also stated that orders used to be procured from different parties at Cuttack and after the goods were obtained from Calcutta, supplies were effected at Cuttack on payment. The Proprietor of the firm also appeared before the Assessing Officer and stated that he was not able to prove that he was making sales directly from Calcutta to the buyers. In fact, at the end of his examination, he even admitted that nothing had been sent directly from Calcutta to the buyers.

Before the Assessing Officer, it was claimed that the sales were not exigible to tax either under the Orissa Act or even under the Central Sales Tax Act. After due investigation, the Assessing Officer negatived the stand of the Assessee and completed assessments under Section 12(5) of the Act, treated the Assessee as an unregistered dealer after estimating the turnover and imposed penalties....

(3.)ASSESSEE 's first appeals were dismissed by the Assistant Commissioner of Sales Tax. On further appeal to the Tribunal, the learned Member found that the goods had moved from Calcutta in West Bengal to Cuttack in Orissa as an incidence of contract of sale and, therefore, the transactions were not liable to tax under the provisions of the State Act as being sales pure and simple inside the State of Orissa. Accordingly he vacated the assessments and with that the penalties were also set aside.