R.N. Misra, J.
1. The Member, Sales Tax Tribunal, Orissa, has referred the following question under Section 24(1) of the Orissa Sales Tax Act for our determination :
Whether on the facts and in the circumstances of the case, the Tribunal was correct in finding that there is a sale in the course of inter-State trade in respect of the sales to the Joint Director of Food, liable to Central sales tax ?
The assessee is a licensee under the Orissa Rice Procurement (Levy) Order, 1964 (hereinafter referred to as the Order) Qua licensee, he sold 3,965 bags of rice valued at Rs. 2,43,780.00 to the Joint Director of Food and despatched the same to different places in West Bengal as per directions of the purchaser. When the Sales Tax Officer proceeded to assess him, the assessee raised the contention that the despatches were under the provisions of the Orissa Rice Procurement (Levy) Order, 1964. He was obliged to sell 50 per cent of his purchases under Clause 3 of the Order. There was thus no sale and, consequently, there could be no liability under the Central Sales Tax Act (hereinafter referred to as the Act). This contention of the asstssee was negatived both at the stage of assessment and by the first appellate authority. The Tribunal also came to the same finding, namely, that these amounted to sales. Reliance was placed by the Tribunal on a decision of the Allahabad High Court in Commissioner of Sales Tax, U.P. v. Ram Bilas Ram Gopal  24 S.T.C. 508. By the time when the application under Section 24(1) of the Orissa Sales Tax Act was being considered by the Tribunal, the decision in Chittar Mal Narain Das v. Commissioner of Sales Tax  26 S.T.C. 344 (S.C.), had adopted a different view.
2. The assessee's learned counsel before us contends relying on the said Supreme Court decision, Chittar Mal Narain Das v. Commissioner of Sales Tax  26 S.T.C. 344 (S.C.), that the transactions in question do not constitute sale. Equating the provisions of the Orissa Rice Procurement (Levy) Order, 1964, with the provisions of the U. P. Wheat Procurement (Levy) Order, 1959, Mr. Lenka for the assessee argues that the decision of the Supreme Court directly applies. On an analysis of the U. P. Wheat Procurement (Levy) Order, 1959, the Supreme Court having come to conclude that the transfer of title under the Order does not amount to a sale, Mr. Lenka contends that the finding given by the authorities under the Act is contrary to law. The Supreme Court in Narain Das' case  26 S.T.C. 344 (S.C.) took into account the following points for its conclusion : A sale predicates a contract of sale of goods between persons competent to contract for a price paid or promised; a transaction in which an obligation to supply goods is imposed and which does not involve an obligation to enter into a contract, cannot be called a 'sale', even if the person supplying goods is declared entitled to the value of goods, which is determined or deter-minable in the manner prescribed. If there be a contract, the restrictions imposed by statute may not vitiate the consent. But the contract cannot be assumed. For rendering the decision in Narain Das' case  26 S.T.C. 344 (S.C.), the learned Judges relied upon their own decisions in New India Sugar Mills Ltd. v. Commissioner of Sales Tax  14 S.T.C. 316 (S.C.), Indian Steel and Wire Products Ltd. v. State of Madras  21 S.T.C. 138 (S.C.) and Andhra Sugars Ltd. v. State of Andhra Pradesh  21 S.T.C. 212 (S.C.). All these cases were, however, reviewed in a subsequent decision in Salar Jung Sugar Mills Ltd. v. State of Mysore  29 S.T.C 246 (S.C.) by a large. Bench of seven Judges of the Supreme Court and the contentions which were approved in Narain Das' case  26 S.T.C. 344 (S.C.), were negatived. The unanimous court came to hold :
(1) Statutory orders regulating supply and distribution of goods under Control Orders in a State did not absolutely impinge on the freedom to enter into contract. Delimiting areas for transactions or parties or denoting prices for transactions were all within the area of individual freedom of contract with limited choice ;
(2) PSectionies were certain and defined, the property in the goods was transferred from the grower to the factory (here from the licensee to the Joint Director of Food) and there was consideration for the transfer. The statutory orders required the parties to enter into agreements and the agreements contained intrinsic evidence that the growers agreed to sell and the factories agreed to buy. There was offer, inspection and appropriation of goods to the contract. The mutual consent was not merely implicit but was explicit. The transactions constituted 'sales'.
Narain Das' case  26 S.T.C. 344 (S.C.) was referred to at page 258 of the report. It is true whether it was correctly decided or not has not been indicated, but the test that has ultimately been put in the latter case of the Supreme Court when applied to Narain Das' case  26 S.T.C. 344 (S.C.) would clearly indicate that the conclusion of the earlier case is not correct. Considering the Procurement (Levy) Order and keeping in view the test indicated in Salar Jung Sugar Mills Ltd. v. State of Mysore  29 S.T.C. 246 (S.C.), we have no doubt in our mind that the conclusion reached in Narain Das' case  26 S.T.C. 344 (S.C.), would not be appropriate and it can still be said that there was a sale. The view taken by the Tribunal that there was a sale, therefore, must stand.
3. The next contention of the assessee before us is that there could only be intra-State sales and, therefore, there was no sale exigible to Central sales tax. We find no merit in this contention. This has never been the assessee's case and if it is permitted to be argued, we have no doubt in our mind that the contention deserves only to be repelled. It is this very sale from the licensee to the Joint Director of Food that leads to the export. What could otherwise have been an intra-State sale becomes an inter-State sale under Section 3 of the Central Sales Tax Act. There is no merit in the assessee's contention. Our answer to the question referred to us, therefore, shall be that on the facts and in the circumstances of the case, the Tribunal was correct in finding that there is a sale in the course of inter-State trade in respect of the sales to the Joint Director of Food exigible to Central sales tax. We make no order as to costs because the reference had been occasioned on the authority of a decision of the Supreme Court on Narain Das' case  29 S.T.C. 246 (S.C.), which held the field when the reference was asked for.
B.K. Ray, J.
4. I agree.