G.K. Misra, C.J.
1. The petitioner was assessed to purchase tax for the quarter ending 30th September, 1959. The assessment order under Section 12(4) of the Orissa Sales Tax Act (hereinafter referred to as the Act) determined the taxable turnover at Rs. 32,599-7-0. The purchase tax levied was Rs. 977.97. Appeals to the Assistant Commissioner of Sales Tax, Puri (the first appellate authority) and to the Sales Tax Tribunal, Orissa (the second appellate authority) failed. The petitioner filed an application before the Tribunal under Section 24(1) of the Act to state a case and refer the following two questions :-
(1) Whether in the facts and circumstances of the case, the learned Tribunal was justified to hold that the petitioner was a purchaser of fish and not a commission agent in relation to the catchers of fish.
(2) Whether in the facts and circumstances of the case, when Section 3-B is read with its proviso, there can be a purchase tax on the petitioner, all of whose fish were bound to be sent outside Orissa and in fact were sold outside Orissa.
The Tribunal rejected the first question as being a pure question of fact. The finding of fact recorded by the assessing authorities, that the petitioner was a purchaser of fish and not a commission agent of the fishermen, is not assailed before us. He did not refer the second question, but referred the following question as recast by himself :-
Whether the State of Orissa is competent to impose purchase tax on goods which are meant for sale outside Orissa when such sales cannot be taxed under the State Act.
No application was filed by the petitioner in the High Court taking exception to the question recast by the Tribunal.
2. The facts, out of which this reference arises, may be stated in brief. Fish is caught from the Chilka Lake by a class of people called Bahamas (fishermen). The petitioner's case is that he is the commission agent of these fishermen and he does not purchase fish from them. As commission agent he procures the fish arid despatches them to Calcutta market to adatdars who are again his commission agents. There being no sale by the fishermen to the petitioner, the petitioner does not make any purchase and purchase tax is not leviable on him. The assessing authorities, after a thorough examination of the account books produced by the petitioner and other materials on record, came to the conclusion that the petitioner's stand was not correct, that he was a purchaser of fish from the fishermen and that, being a registered dealer under the Act, he was liable to pay purchase tax. It is to be noted that by Orissa Act 28 of 1958, which came into force on 1st December, 1958, purchase tax was introduced. The definitions of 'dealer' and 'gross turnover' were amended to include purchases.
3. Section 3-B of the Act was for the first time introduced in the statute. It runs thus :
3-B. Goods liable to purchase tax.-The State Government may, from time to time by notification, declare any goods or class of goods to be liable to tax on turnover of purchases :
Provided that no tax shall be payable on the sales of such goods or class of goods declared under this section.
The State Government imposed purchase tax on fish with effect from 1st February, 1959, by notification.
Mr. Bhattacharya contends that this section read as a whole postulates that it can have application only in those cases where both the taxes, one at the purchase point and the other at the sale point, can be realised from the petitioner. This contention has no force.
4. Section 8 of the Act makes provision for single point taxation. So far as relevant, it runs thus :
Notwithstanding anything to the contrary in this Act, the State Government may prescribe the points in the series of sales or purchases by successive dealers at which any goods or classes or descriptions of goods may be taxed or exempted from taxation and in doing so may direct that sales to or purchases by a person other than a registered dealer shall be exempted from taxation :
Provided that the same goods shall not be taxed at more than one point in the same series of sales or purchases by successive dealers.
The proviso is clear in prescribing single point taxation. As a necessary corollary, if particular goods are liable to pay sales tax, then no purchase tax is leviable in respect thereof. This is exactly what has been enacted in Section 3-B of the Act. The proviso to Section 3-B merely emphasises the fact that where purchase tax is leviable on particular goods or class of goods, no sales tax is leviable in respect thereof. The contention is contrary to the scheme of the Act and the plain language of the section that either purchase tax or sales tax is leviable and not both. This contention is therefore rejected.
5. The reason why the aforesaid contention was advanced by Mr. Bhattacharya may be explained. Formerly sales tax was being levied on the sale of fish by persons sending fish to Calcutta for sale. One of such cases came up for consideration before the Supreme Court in State of Orissa v. Gobinda Rath  11 S.T.C. 744 (S.C.). The facts in that case, on the basis of which the Supreme Court quashed the assessment of sales tax, were that the assessee in that case exported fish to purchasing dealers at Calcutta whom he called his commission agent. The Calcutta dealers regularly sent the assessee advances against fish exported to them for sale. The assessee purchased the fish in Orissa and consigned,the same by rail at railway stations situate within the State. The purchasing dealers took delivery of the fish in Calcutta, stocked them in their godowns and ultimately sold them to third parties and remitted the value of the goods to the assessee deducting advances paid and godown and other charges. On those facts, their Lordships held that the sales took place in Calcutta and as such were not intra-State sales in Orissa and were not liable to Orissa sales tax. Therein their Lordships however clearly observed that the assessee was not asked to pay a purchase tax. He was asked to pay a tax on sales made in Orissa.
6. What Mr. Bhattacharya wants to contend is that if the sale of the fish by the assessee in the aforesaid case in Calcutta could not be taxed, then the purchase of the fish inside Orissa for exporting them to Calcutta for sale cannot be taxed by virtue of Section 3-B of the Act. For reasons analysed by me, this contention has no force. The language of Section 3-B is clear and unless there is any ban either by the Constitution or the Central Sales Tax Act, tax is leviable inside Orissa on the purchases of fish made by the assessee. All the assessing authorities held that the petitioner was a buyer of fish from the fishermen and was not a commission agent as claimed by him. On such a finding, purchase tax is leviable and Section 3-B does not stand in the way.
7. Mr. Bhattacharya next contends that the assessee despatched the fish to Calcutta in the course of inter-State trade and as such, the purchase by him from the fishermen amounts to a purchase in the course of inter-State trade and is liable to be assessed to sales tax under Section 3(a) of the Central Sales Tax Act, 1956 (hereinafter referred to as the Central Act) and not under the Act. This contention requires careful examination. Section 3 of the Central Act, so far as relevant, runs thus :
Section 3. 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.
The identical expression 'occasions the movement of goods' has been used in Section 5(2) of the Central Act. Section 5(2), so far as relevant, lays down :
5. (2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import....
That the contents of Section 3(a) and lection 5(2) of the Central Act are the same, has now been authoritatively pronounced in Khosla and Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes  17 S.T.C. 473 (S.C.). At page 487 their Lordships observed that the expression 'occasions the movement of goods' occurring in Section 3(a) and Section 5(2) must have the same meaning. In Tata Iron and Steel Co. Ltd. v. S.R. Sarkar  11 S.T.C. 655 (S.C), the scope and ambit of Section 3(a) of the Central Act was explained. It was said in the majority judgment by Shah, J., that and (a) of Section 3 covers sales in which the movement of goods from one State to another is the result of a covenant or incident of the contract of sale and the property in the goods passes in either State. This observation was accepted as laying down good law in all subsequent Supreme Court decisions and this fact has been referred to in Khosla's case  17 S.T.C. 473 (S.C.). In Khosla's case  17 S.T.C. 473 (S.C.), the movement of goods from Belgium to India was in pursuance of the conditions of the contract between the assessee and the Director-General of Supplies. There was no possibility of those goods being diverted by the assessee for any other purpose. Consequently their Lordships held that the sales took place in the course of import of goods within Section 5(2) of the Central Act and were therefore exempt from the Madras sales tax. The principle laid down in Khosla's case  17 S.T.C. 473 (S.C) will govern the present case.
8. It is necessary to analyse the various elements to be taken into consideration for distinguishing two types of cases, namely, a transaction which may be called a sale for export and which is a sale in the course of export.
A sale can be said to occasion an export only if the following conditions are fulfilled :-(1) There is common intention of both the seller and the buyer to export; (2) There is an obligation to export; (3) There is an actual export. This obligation to export may arise either from statute or contract between the parties or from mutual understanding or agreement between them and even from the nature of the transaction which links the sale to the export. The bond between the sale and the export would be such which cannot be destroyed except without a breach of the obligation. These principles have been clearly explained in the majority judgment of Shah, J., in B.G.N. Plantations etc. v. Sales Tax Officer A.I.R. 1964 S.C. 1752. In paragraph 8, a masterly exposition of the law has been given. Their Lordships observed thus :
In general where the sale is effected by the seller and he is not connected with the export which actually takes place, it is a sale for export. Where the export is the result of sale, the export being inextricably linked up with the sale so that the bond cannot be dissociated without a breach of the obligation arising by statute, contract or mutual understanding between the parties arising from the nature of the transaction, the sale is in the course of export.
This decision is in the same line as was subsequently held by the Supreme Court in Khosla's case  17 S.T.C. 473 (S.C.).
9. Applying the aforesaid test to the present case, it would be seen that the assessee has made out no case that he was under any obligation by virtue of any contract or understanding to export fish to Calcutta. There are also no materials or finding that the fishermen selling the fish to the assessee had anything to do with the export of fish by the assessee to Calcutta. No case was made out and no finding sought that the assessee was under any obligation to export the fish to Calcutta after purchase from the fishermen. Thus the fishermen are in no way connected with the export of fish to Calcutta though in fact fish purchased were exported. The assessee could have sold the fish inside Orissa after the purchase. Even assuming that the assessee had the intention from the very start that he would export the fish to Calcutta, there is no proof that he had an obligation to export the fish to Calcutta. The mere factual export of fish does not therefore bring the case as being a sale in the course of inter-State trade. In paragraph 8 in B.G.N. Plantations v. Sales Tax Officer A.I.R. 1964 S.C. 1752, their Lordships gave the following illustration:
For instance, the foreign purchaser either by himself or through his agent purchases goods within the territory of India and exports the goods and even if the seller has the knowledge that the goods are intended by the purchaser to be exported, such a transaction is not in the course of export for the seller does not export the goods and it is not his concern as to how the purchaser deals with the goods. Such a transaction without more cannot be regarded as one in the course of export because etymologi-cally 'in the course of export' contemplates an integral relation or bond between the sale and the export.
In this case the fishermen (the sellers) might have even the knowledge that the fish would be exported by the assessee to Calcutta, but there is no integral link between the sale and the export. The export of fish by the assessee, if any, to Calcutta is therefore not in the course of inter-State trade. The purchase from the fishermen was for the purpose of export of fish outside the State, but not in the course of inter-State trade. It is not necessary to refer to the plethora of authorities cited on either side. The aforesaid three Supreme Court decisions clearly bring out the distinction between a sale for export to an outside State and a sale in the course of inter-State trade.
10. As a result of the aforesaid discussion, we would answer the question in the affirmative by saying that the State of Orissa is competent to impose purchase tax on fish sold by the fishermen to the assessee. The assessing authorities had taken the correct view. There will be no order as to costs.
B.K. Patra, J.