R.R.Misra, J. - (1.) During the assessment year 1981-82, the assessee carried on business in gur, foodgrains, etc. The account books of the assessee were accepted. It purchased gur, etc., on behalf of the ex-U.P. principals against verbal orders and packed the same in his own gunny bags which were purchased by the assessee in his own account. Thereafter the packed bags were sent to ex-U.P. principals. Admittedly the price of the commodity supplied and of gunny bags were charged separately but commission was charged for both the prices. The assessing authority treated the transaction in bardana to be separate from the transaction of purchasing agency of gur, etc. and held that the supply of bardana was a sale in the course of inter-State trade and commerce and accordingly he levied Central sales tax on the assessee. On appeal, the Assistant Commissioner (Judicial) upheld the said assessment made by the Sales Tax Officer. On further appeal, the Tribunal has, by the impugned order, again upheld the imposition of Central sales tax. On a consideration of the materials on record, the Tribunal arrived at the following conclusions : 1. Separate price for bardana was charged with commission on the price. A separate khata was maintained for the purchase and sale of bardana. 2. Bardana was purchased by the dealer in his own account and not in the account of ex-U.P. principals. 3. This bardana was not returned. It was never contemplated that it would be returned back. 4. All purchase orders were said to have been verbal and no written purchase order is available for examination of the terms of contract. Though it is hardly believable in view of the nature of transaction involved, but even accepting this contention as such, except supply vouchers, there is no document to examine any contract made between the parties. 5. A contract was apparently of the supply of other goods in purchasing commission agency and not for supply of bardana as such. The assessee supplied those goods in his own bardana and charged the price of bardana with commission, separately. Clearly, the charging of price of bardana separately was contemplated.
(2.) The Tribunal on appraisal of evidence came to the conclusion that although there was no written agreement in regard to the supply of bardana but there was an implied contract.
(3.) The first submission made by the learned counsel for the assessee is that the Sales Tax Tribunal is in error in deciding the case on the basis of a decision of this Court rendered in the case of Commissioner of Sales Tax, U.P. v. Vanaspati Trading Company 1979 UPTC 1011. On the other hand the submission is that the present case is squarely covered by another decision of this Court in the case of Commissioner of Sales Tax v. Mool Chand Gulzari Mal, Ghaziabad 1983 UPTC 91. It has further been stated that a special leave petition filed by the Commissioner of Sales Tax against the aforesaid judgment in the case of Mool Chand Gulzari Mal 1983 UPTC 91 (All.) has also been dismissed by the Supreme Court on 2nd November, 1987.;