- (1.)This is an appeal from a judgment and order making a Rule issued in the writ petition against the Appellant absolute. The relevant facts of the case which are not very much in dispute are as follows :- The respondent No. 1 Messrs. Vishnu Agencies Private Ltd. is a registered dealer under the Bengal finance (Sales Tax) Act, 1941 and a licensed stockist and dealer of cement which is a controlled commodity and its distribution is completely regulated by the West Bengal Cement Control Act and the orders and notifications made thereunder.
(2.)There is no dispute that the respondent No. 1 is a licensed stockist under the said Cement Control Act and the orders and notifications made thereunder from time to time.
(3.)The only question raised in this appeal is whether the transactions between the respondent No. 1 Messrs. Vishnu Agencies Private Ltd. and the permit licence holders for cement issued by the Director of Textile and Consumer Goods of the West Bengal State Licensing Authority for iron and steel and cement constitute safe of goods under the Sale of Goods Act. In other words, are the provisions of Bengal Finance (Sales Tax) Act, 1941 are attracted in respect of transactions referred to by the respondent No. 1 in the original writ petition by making supplies to the permit holders for cement, which they allege are not voluntary sales but delivers under compulsion made by the petitioners under the terms of the permit issued to the permit holders and the said cement control order and orders and notification issued thereunder. Therefore, the only question in the appeal whether the transaction mentioned in the petition amounts to sale of goods so as to attract the provisions of the Bengal Finance (Sales Tax) Act, 1941. In order to appreciate the question which has been argued exhaustively by both the parties by citing large number of decisions mostly of Supreme Court, it is first, necessary to set out the relevant portions of the said Cement Control Act and the orders and notifications made thereunder, the terms of licence of a stockist and dealer of cement and also the form of licence for cement issued to permit holders. WEST BENGAL ACT XXVI OF 1948 THE WEST BENGAL CEMENT CONTRAOL ACT, 1948. 1. (1) ??????? 2. (2) It extends to the whole of West Bengal ??? 3. (1) The State Government so far as it appears to it to be necessary or expedient for maintaining or increasing the supply for cement, or for securing its equitable distribution and availability at fair prices, may, by order in the Official Gazette, provide for regulating or prohibiting the production, supply and distribution thereof and trade commerce therein within West Bengal - (2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made there under may provide -
(a) for regulating by licences, permits or otherwise the production or manufacture of cement;

(b) for regulating or controlling the prices at which cement may be purchased or sold and for prescribing the conditions of sale thereof;

(c) for regulating by licences, permits or otherwise, the storage, transport, movement, possession, distribution, disposal, acquisition, use or consumption of cement;

(d) for prohibiting the withholding form sale of cement ordinarily kept for sale;

(e) for requiring any person holding stock of cement to sell the whole or specified part of the stock at such prices and to such persons or classes of persons or in such circumstances, as may be specified in the order;

(f) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters;

(g) for requiring persons engaged in the production, supply or distribution or, or trade or commerce in, cement to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the order;