{"id":88360,"date":"1989-05-16T00:00:00","date_gmt":"1989-05-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/raj-steel-ors-etc-etc-vs-state-of-a-p-anr-etc-etc-on-16-may-1989"},"modified":"2018-12-09T23:06:58","modified_gmt":"2018-12-09T17:36:58","slug":"raj-steel-ors-etc-etc-vs-state-of-a-p-anr-etc-etc-on-16-may-1989","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/raj-steel-ors-etc-etc-vs-state-of-a-p-anr-etc-etc-on-16-may-1989","title":{"rendered":"Raj Steel & Ors. Etc. Etc vs State Of A.P. & Anr. Etc. Etc on 16 May, 1989"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Raj Steel & Ors. Etc. Etc vs State Of A.P. & Anr. Etc. Etc on 16 May, 1989<\/div>\n
Equivalent citations: 1989 AIR 1696, \t\t 1989 SCR (3) 305<\/div>\n
Author: R Pathak<\/div>\n
Bench: Pathak, R.S. (Cj)<\/div>\n
           PETITIONER:\nRAJ STEEL & ORS. ETC. ETC.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF A.P. & ANR. ETC. ETC.\n\nDATE OF JUDGMENT16\/05\/1989\n\nBENCH:\nPATHAK, R.S. (CJ)\nBENCH:\nPATHAK, R.S. (CJ)\nKANIA, M.H.\n\nCITATION:\n 1989 AIR 1696\t\t  1989 SCR  (3) 305\n 1989 SCC  (3) 262\t  JT 1989  Supl.    226\n 1989 SCALE  (1)1573\n\n\nACT:\n    Andhra  Pradesh General Sales Tax Act, 1957\/Andhra\tPra-\ndesh  General  Sales Tax Rules. Sections 2, 5, 6  and  First\nSchedule  Item\t157\/  Rule  6--Assessees--Manufacturers\t  of\nbeer\/cement--Goods--Beer  sold in bottles packed in  Cartons\nand  cement in gunny bags--Assessment to sales tax  made  on\nthe turnover of packing material--Whether valid.\n\n\n\nHEADNOTE:\n       The appellants in some of the appeals are manufactur-\ners  of\t or  dealers in beer, the appellants  in  the  other\nappeals are manufacturers of or dealers in cement.\n     The  appellants  filed  writ petitions  in\t the  Andhra\nPradesh High Court challenging the assessment made under the\nAndhra\tPradesh General Sales Tax Act, 1957 on the  turnover\nof  packing material employed either by way of\tbottles\t for\ncontaining beer or by way of gunny bags for packing  cement.\nThe  appellants challenged the application of such  rate  in\nassessments  made in relation to the period before  8  July,\n1983. The appellants also challenged the application of that\nrate proposed pursuant to s. 6C in show cause notices issued\nby  the concerned authority. Section 6C was inserted in\t the\nAct with effect from 8 July, 1983.\n    The\t High  Court while dismissing  the  writ  petitions,\nproceeded on the basis that, having regard to the nature  of\nthe  goods and to the trade practice in respect of beer\t and\ncement,\t the containers were necessary concomitants  in\t the\ntransactions, and the transfer of property in the containers\nwas  incidental or unavoidable, that the  sale\ttransactions\nhad to be regarded as composite and integrated sales of\t the\ncontainers  and their contents and what was really sold\t was\nthe  bottled  beer or the cement packed in gunny  bags.\t The\nlearned\t Judges\t expressed the view that  the  consideration\npaid  by the purchaser to the dealer consisted not  only  of\nthe price of the contents, namely, beer or cement, but\talso\nincluded  the price of the containers, that is, the  bottles\nand the cartons in the case of beer and gunnies in the\tcase\nof cement.\nWhile  allowing the appeals and remanding the cases  to\t the\nHigh\n306\nCourt, and in the case of the writ petitions, while  direct-\ning  the assessing authority to determine the matters  after\nallowing the dealers to show cause, this Court,\n    HELD: (1) A transaction of sale may consist of a sale of\nthe product and a separate sale of the container housing the\nproduct with respective sale considerations for the  product\nand the container separately; or it may consist of a sale of\nthe product and a sale of the container but both sales being\nconceived  of  as  integrated components of  a\tsingle\tsale\ntransaction;  or  what may yet be of a third  case,  it\t may\nconsist\t of a sale of the product with the transfer  of\t the\ncontainer  without  any sale  consideration  therefore.\t The\nquestion in every case will be a question of fact as to\t the\nnature\tand ingredients of the sale. It is not right in\t law\nto  pick  on  one ingredient only to the  exclusion  of\t the\nothers and deduce from it the character of the\ttransaction.\nIn every case, the assessing authority is obliged to  ascer-\ntain the true nature and character of the transaction upon a\nconsideration of all the facts and circumstances  pertaining\nto the transaction. [310C-E; H; 311A]\n    Hyderabad  Deccan Cigarette Factory v. The State  of  A.\nP., [1966] 17 STC 624, referred to.\n    (2) There can be as many different kinds of transactions\nas  the\t circumstances\tof the case may\t require  either  by\nreason of prevailing trade practice or market conditions  or\npersonal convenience, and as human ingenuity may devise\t for\nbonafide  reducing the burden of tax. Whether a\t transaction\nfor  sale of packing material is an independent\t transaction\nwill depend upon several factors. [312E]\n    (3)\t The  issue as to whether the packing  material\t has\nbeen  sold or merely transferred without  consideration\t de-\npends on the contract between the parties. The fact that the\npacking\t is of insignificant value in relation to the  value\nof  the\t contents may imply that there was no  intention  to\nsell  the  packing,  but where any packing  material  is  of\nsignificant  value  it may imply an intention  to  sell\t the\npacking material. In a case where the packing material is an\nindependent  commodity and the packing material as  well  as\nthe contents are sold independently. The sale of the packing\nmaterial is liable to tax independently. [313E-G]\n    Commissioner  of Taxes, Assam v. Prabhat  Marketing\t Co.\nLtd.,<\/a> [1967] 19 STC 84; The State of Karnataka v. Shaw\tWel-\nlace & Company Ltd., [1981] 48 STC 169; Arlem Breweries Ltd.\nv.  The Assistant Commissioner of Sales Tax, Panaji,  [1983]\n53 STC 172; M\/s. Jamana Flour\n307\nMill (P) Ltd. v. State of Bihar, AIR<\/a> 1987 SC 1207 and Punjab\nDistilling  Industries\tLtd. v. The Commissioner  of  Income\nTax, Simla,<\/a> [1959] Supp. 1 SCR 683, referred to.\n    4.\tSection 6C seems to envisage a case where it is\t the\ngoods which are sold there is no actual sale of the  packing\nmaterial.  The\tsection provides by legal fiction  that\t the\npacking material Shall be deemed to have been sold alongwith\nthe  goods. In that event, the tax will be leviable on\tsuch\ndeemed\tsale  of  the packing material at the  rate  of\t tax\napplicable to the sale of the goods themselves. It is diffi-\ncult to comprehend the need for such a provision. It can  at\nbest  be regarded as a provision by way of clarification  of\nan existing legal situation, which merely explains that\t the\ncomponents which have entered into determining the price  of\nthe goods cannot be treated separately from the goods  them-\nselves, and that no account was in fact taken of the packing\nmaterial  when the transaction took place, and that if\tsuch\naccount must be taken then the Same rate must be applied  to\nthe  packing  material as is applicable to the\tgoods  them-\nselves. [314D-E; 315A-B]\n    (5)\t It  is difficult to accept the\t contention  of\t the\nappellants that a rate applicable to the packing material in\nthe  Schedule should be applied to the sale of such  packing\nmaterial  in a case under s. 6C, when in fact there  was  no\nsuch  sale of packing material and it is only by legal\tfic-\ntion,  and  for\t a limited purpose, that such  sale  can  be\ncontemplated. In the circumstances, no question arises of s.\n6C  being  constitutionally  discriminatory,  and  therefore\ninvalid. [315B-C]\n    (6) The High Court has proceeded on the assumption\tthat\nwhat  is  charged  is the price of the bottled\tbeer  or  of\ncement packed in gunny bags. No attempt was made by the\t tax\nauthorities  to\t ascertain  the facts of each  case  and  to\ndetermine  what were the actual ingredients of the  contract\nand the intention of the parties. Assumptions had been\tmade\nwhen what was required was a detailed investigation into the\nfacts.\tBecause\t of the lack of adequate and  clear  factual\nmaterial,  the High Court also was compelled to\t proceed  on\nthe  basis of generalised statements and broad\tassumptions.\n[315C-E]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL APPELLATE JURISDICTION: Civil Appeal NO. 186875 of
\n1986.\n<\/p>\n
    From  the  Judgment\t and Order dated  28.2.1986  of\t the
\nAndhra Pradesh High Court in W.P. Nos. 10181 of 1983, 11830,
\n4677, 4763, 4778 of 1985, 4926, 4935 and 4948 of 1986.\n<\/p>\n
308<\/span><\/p>\n
    A.K. Ganguli, A.K. Sen, Shanti Bhushan, Harish N. Salve,
\nS. Krishnan, J.B. Dada Chanji, Mrs. A.K. Verma, Joel  Pares,
\nR. Dave, A. Subba Rao, Sunil Kumar Jain, Vijay Hansaria,  K.
\nSrinivasa Mufti, Kailash Vasudev, Nauni Lal, A.T.M. Sampath,
\nR.  Karanjawala, Mrs. M. Karanjawala and H.S. Anand for\t the
\nAppellants.\n<\/p>\n
    M.K.  Banerjee, Solicitor General, B. Datta,  Additional
\nSolicitor General, T.V.S.N. Chari, Ms. Sunita and Ms. Vrinda
\nGrover for the Respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\n    PATHAK,  CJ.  These\t appeals are  directed\tagainst\t the
\njudgment  of  the High Court of\t Andhra\t Pradesh  dismissing
\nseveral\t writ petitions filed by the appellants\t challenging
\nassessments made under the Andhra Pradesh General Sales\t Tax
\nAct  1957 on the value of packing material at the  rate\t ap-
\nplicable to goods packed therein.\n<\/p>\n
    The appellants in some of the appeals are  manufacturers
\nof  or dealers in beer, the appellants in the other  appeals
\nare manufacturers of or dealers in cement. The beer is\tsold
\nin bottles packed in cartons. The cement is sold in gunnies.
\nSection\t 5  of\tthe Andhra Pradesh  General  Sales  Tax\t Act
\n(hereinafter referred to as ‘the Act’) provides for the levy
\nof sales tax on the turnover of goods at the rates specified
\nin  that  provision. In the case of goods mentioned  in\t the
\nFirst Schedule to the Act tax is leviable at the rates,\t and
\nat  the\t point of sale, specified therein. In  the  case  of
\ngoods  mentioned  in  the Sixth Schedule,  likewise  tax  is
\nleviable  at the rates and at the points specified  therein.
\nItem  19 of the First Schedule speaks of  ‘Containers  other
\nthan gunnies and bottles’. These goods are subject to tax at
\nthe rate of 5 paise in the rupee at the point of first\tsale
\nin  the\t State. Item 123 of the\t First\tSchedule  enumerates
\n‘glass\tand glassware’, which is subject to sales tax  at  9
\npaise in the rupee at the point of first sale in the  State.
\nIn respect of cement tax is leviable by reference to item 18
\nof  the First Schedule at the rate of 10 paise in the  rupee
\nat  the\t point of first sale in the  State,  while  gunnies,
\nformerly mentioned under item 67 of the First Schedule,\t and
\nnow  included in item 157 of that Schedule, are\t subject  to
\ntax  at\t the point of first sale in the State. And  beer  is
\ncovered\t by item 1 of the Sixth Schedule under the  category
\n‘Country  Liquor’  taxable at the rate of 10  paise  in\t the
\nrupee at every point of sale other than at the point of last
\nsale, at which point the rate is 5 paise per rupee.\n<\/p>\n
309<\/span><\/p>\n
    Clause (s) of Section 2 of the Act defines ‘turnover’ to
\nmean  the  total amount set out in the bill of sale  (or  if
\nthere  is no bill of sale, the total amount charged) as\t the
\nconsideration  for  the sale or purchase of  goods  (whether
\nsuch  consideration be cash, deferred payment or  any  other
\nthing of value) including any sums charged by the dealer for
\nanything  done\tin respect of goods sold at the time  of  or
\nbefore the delivery of the goods and any other sums  charged
\nby  the dealer, whatever be the description, name or  object
\nthereof;  or the aggregate of amounts charged under  section
\n5-C.\n<\/p>\n
    With effect from 8 July, 1983, section 6-C was  inserted
\nin  the\t Act by Andhra Pradesh Act No. 11 of  1984,  and  it
\nprovides:\n<\/p>\n
\t      ‘Notwithstanding\tanything in sections  5\t and
\n\t      6-A,  where goods packed in any materials\t are
\n\t      sold or purchased, the materials i,n which the
\n\t      goods  are so packed shall be deemed  to\thave
\n\t      been  sold or purchased along with  the  goods
\n\t      and the tax shall be leviable on such sale  or
\n\t      purchase of the materials at the rate of\ttax,
\n\t      if any, as applicable to the sale, or, as\t the
\n\t      case may be, purchase of goods themselves.’
\n    The net turnover of a dealer assessable to tax is deter-\n<\/p><\/blockquote>\n
mined  under rule 6 of the Andhra Pradesh General Sales\t Tax
\nRules,\tafter deducting the amount specified in clauses\t (a)
\nto  (1)\t of  that rule from the\t total\tturnover.  Of  these
\nclauses, clause (g) speaks of:\n<\/p>\n
\t      ‘Amounts\trelating  to  charges  for  services
\n\t      rendered\tin  connection with the\t packing  of
\n\t      goods  when specified and charged for  by\t the
\n\t      dealer  separately, without including them  in
\n\t      the price of goods sold.’
\n    The\t appellants filed the writ petitions, out  of  which
\nthe  present appeals arise, in the High Court  at  Hyderabad
\nchallenging  the assessments to sales tax made on the  turn-\n<\/p><\/blockquote>\n
over  of packing material employed either by way of  bottles
\nfor  containing\t beer or by way of gunny  bags\tfor  packing
\ncement.\t The appellants challenged the application  of\tsuch
\nrate in assessments made in relation to the period before  8
\nJuly,  1983. The appellants also challenged the\t application
\nof  that rate proposed pursuant to s. 6C in show  cause\t no-
\ntices  issued by the concerned authority.  While  dismissing
\nthe  writ  petitions, the High Court has  proceeded  on\t the
\nbasis  that having regard to the nature of the goods and  to
\nthe  trade practice in respect of beer and cement  the\tcon-
\ntainers were necessary concomitants in the transactions, and
\nthe transfer of
\n310<\/span>
\nproperty  in the containers was incidental  or\tunavoidable,
\nthat  the sale transactions had to be regarded as  composite
\nand  integrated sales of the containers and  their  contents
\nand what was really sold was the bottled beer or the  cement
\npacked\tin gunny bags. The learned Judges  observed  further
\nthat  even  where money was paid to the dealer\tas  security
\ndeposit refundable on the return of the bottles the sale  of
\nthe  bottle could not be treated as an independent  transac-
\ntion different and distinct from the transaction of sale  of
\nthe  beer. So also was the case in the sale of\tcement\tcon-
\ntained\tin  gunnies. The learned Judges expressed  the\tview
\nthat  the consideration paid by the purchaser to the  dealer
\nconsists not only of the price of the contents, namely, beer
\nor  cement, but also includes the price of  the\t containers,
\nthat is the bottles and the cartons in the case of beer\t and
\ngunnies in the case of cement.\n<\/p>\n
    It\tis commonly accepted that a transaction of sale\t may
\nconsist of a sale of the product and a separate sale of\t the
\ncontainer housing the product with respective sale consider-
\nations\tfor the product and the container separately; or  it
\nmay  consist  of  a sale of the product and a  sale  of\t the
\ncontainer  but both sales being conceived of  as  integrated
\ncomponents  of a single sale transaction; so., what may\t yet
\nbe  a  third case, it may consist of a sale of\tthe  product
\nwith the transfer of the container without any sale  consid-
\neration\t therefore.  The question in every case\t will  be  a
\nquestion of fact as to what are’. the nature and ingredients
\nof the sale. It is not right in law to pick on one  ingredi-
\nent  only to the exclusion of the others and deduce from  it
\nthe  character of the transaction. For example, the  circum-
\nstance\tthat the price of the product and the price  of\t the
\ncontainer  are\tshown separately may be\t evidence  that\t two
\nseparate  transactions are envisaged, but that\tcircumstance
\nalone  cannot  be conclusive of the true  character  of\t the
\ntransaction.  It  is not unknown that traders may,  for\t the
\nadvantage of their trade, show what is essentially a  single
\nsale transaction of product and container, or a\t transaction
\nof a sale of the product only with no consideration for\t the
\ntransfer  of the container, as divisible into  two  separate
\ntransactions,  one of sale of the product, and the  other  a
\nsale  of the container, with a distinct price shown  against
\neach.  Similarly  where a deposit is made by  the  purchaser
\nwith  the dealer, the deposit may be pursuant to a  transac-
\ntion where there is no sale of the container and its  return
\nis contemplated, and in the event of its not being  returned
\nthe security is liable to forfeiture. Alternatively, it\t may
\nbe a case where the Container is sold and the deposit repre-
\nsents  the consideration for the sale, and in the  event  of
\nthe  container being returned to the dealer the\t deposit  is
\nreturned  by way of consideration for the re-sale. In  every
\ncase, the assessing authority is obliged to ascertain the
\n311<\/span>
\ntrue nature and character of the transaction upon a  consid-
\neration of all the facts and circumstances pertaining to the
\ntransaction. That the problem almost always requires factual
\ninvestigation into the nature and ingredients of the  trans-
\naction\thas  been repeatedly emphasised by  this  Court.  In
\nHyderabad  Deccan Cigarette Factory v. The State  of  Andhra
\nPradesh, [1966] 17 STC 624 this Court said:\n<\/p>\n
\t      “It is not possible to state as a\t proposition
\n\t      of  law  that whenever particular\t goods\twere
\n\t      sold in a container the parties did not intend
\n\t      to sell and buy the container also. Many cases
\n\t      may  be  visualized  where  the  container  is
\n\t      comparatively of high value and sometimes even
\n\t      higher  than  that contained in it.  Scent  or
\n\t      whisky may be sold in costly containers.\tEven
\n\t      cigarettes  may  be  sold in  silver  or\tgold
\n\t      caskets.\tIt  may be that in  such  cases\t the
\n\t      agreement\t to pay an extra price for the\tcon-
\n\t      tainer  may  be more readily implied.  In\t the
\n\t      present  case, if we may say so with  respect,
\n\t      all the authorities, including the High Court,
\n\t      dealt  with the question as a question of\t law
\n\t      without considering the relevant factors which
\n\t      would    sustain\t or   negative\t any\tsuch
\n\t      agreement\t …….\n<\/p><\/blockquote>\n
\t      A perusal of the orders of the various author-
\n\t      ities  and the High Court shows that a  simple
\n\t      question\tof  fact  has  been  sidetracked  by
\n\t      copious citations. Whether there was an agree-
\n\t      ment  to sell the packing materials is a\tpure
\n\t      question\tof fact and that question cannot  be
\n\t      decided on fictions or surmises. That is\twhat
\n\t      has happened in this case. The Commercial\t Tax
\n\t      Officer invoked a fiction; the, Assistant Com-
\n\t      missioner of Commercial Taxes relied upon\t the
\n\t      doctrine of “finished product”; the  Appellate
\n\t      Tribunal\trelied upon surmises; and  the\tHigh
\n\t      Court, on the principle of implied  agreement.
\n\t      But  none has tackled the real  question.\t The
\n\t      burden lies upon the Commercial Tax Officer to
\n\t      prove  that  a turnover is liable to  tax.  No
\n\t      doubt  he can ask the assessee to produce\t the
\n\t      relevant material; and if he does not  produce
\n\t      the  same,  he may draw an  adverse  inference
\n\t      against  him. But, he must decide the  crucial
\n\t      question\twhether the packing  materials\twere
\n\t      subject  of the agreement of sale, express  or
\n\t      implied.\tTo  ascertain the said fact  he\t can
\n\t      rely upon oral statements, accounts and  other
\n\t      documents, personal enquiry and other relevant
\n\t      circumstances  such  as  the  nature  and\t the
\n\t      purpose of the packing materials used.”\n<\/p><\/blockquote>\n
312<\/span><\/p>\n
Again, in Commissioner of Taxes, Assam v. Prabhat  Marketing
\nCo.,  Ltd.,<\/a>  [1967] 19 STC 84 this Court accepted  as  well-
\nfounded submission that the parties may have intended in the
\ncircumstances  to sell hydrogenated oil apart from the\tcon-
\ntainers, and the mere fact that the price of the  containers
\nwas  not  separately fixed would make no difference  in\t the
\nassessment of sales tax, and went on to observe:\n<\/p>\n
\t      “It  is  well-established\t that  in  order  to
\n\t      constitute  a sale it is necessary that  there
\n\t      should be an agreement between the parties for
\n\t      the  purpose of transferring title  to  goodS,
\n\t      the  agreement  must  be\tsupported  by  money
\n\t      consideration,  and  that as a result  of\t the
\n\t      transaction the property should actually\tpass
\n\t      in  the goods. Unless all the ingredients\t are
\n\t      present  in the transaction there could be  no
\n\t      sale of goods and sales tax cannot be  imposed
\n\t      State  of Madras v.  Gannon Dunkerley and\t Co.<\/p><\/blockquote>\n
\t      (Madras) Ltd., [1959] S.C.R. 379
\n…………………………………………………….\n<\/p>\n
\t      The question as to whether there is an  agree-
\n\t      ment to sell packing material is a pure  ques-
\n\t      tion of fact depending upon the  circumstances
\n\t      found in each case.”\n<\/p>\n
    There can be as many different kinds of transactions  as
\nthe  circumstances of the case may require either by  reason
\nof prevailing trade practice or market conditions or person-
\nal  convenience, and as human ingenuity may devise for\tbona
\nfide  reducing the burden of tax. In The State of  Karnataka
\nv. Shaw Wallace and Company Ltd., [1981] 48 STC 169 the High
\nCourt  of Karnataka pointed out that there was an  agreement
\nto  sell  the  bottles and crates in which  the\t liquor\t was
\nconveyed  and there was also an agreement in regard  to\t the
\nprice  of  those containers, and therefore the\tturnover  in
\nregard to those items had to be determined and the appropri-
\nate  rate of sales tax had to be charged as provided in\t the
\nKarnataka Sales Tax Act. Reference was made to the  require-
\nment  in the Karnataka Excise Act, 1966 that the liquor\t had
\nto  be\tsold in sealed containers but that, the\t High  Court
\nsaid, did not automatically lead to the conclusion that\t the
\nsame rate of sales tax was applicable to containers also. It
\nwas  observed  that such a presumption could  not  be  made,
\nspecially  when separate rates were specified in  the  Sales
\nTax  Act  in regard to the containers and the  contents.  In
\nArlem Breweries Ltd. v. The Assistant Commissioner of  Sales
\nTax, Panaji, [1983] 53 STC 172 the Panaji Bench of the\tHigh
\nCourt of Bombay noted that item 22 of the First Schedule  to
\nthe  Goa, Daman and Diu Sales Tax Act, 1964, which spoke  of
\nthe item “foreign liquor and
\n313<\/span>
\nIndia-made foreign liquor” indicated that the tax was levied
\nonly on the liquor and not against the bottle and liquor  or
\nbottled\t liquor. The sale was of beer and the  bottles\twere
\ntreated separately. It was also pointed out that the  agree-
\nment by the assessee with the wholesaler did not create\t any
\nobligation  on the purchasers to return the bottles nor\t did
\nit  fix any time for their return. The payment of an  amount
\nfor  the  bottles in advance as a term of the sale  was\t re-
\nferred\tto as cost of the bottles and this, the\t High  Court
\nsaid,  constituted  the sale price of the  bottles  although
\ndescribed  as a deposit. In M\/s Jamana Flour & Oil Mill\t (P)
\nLtd. v. State of Bihar, AIR<\/a> 1987 SC 1207 this Court affirmed
\nthe finding that there was an implied agreement of the\tsale
\nof gunny bags. It said:\n<\/p>\n
\t      “Admittedly gunny bags are a different commod-
\n\t      ity and sale thereof is assessable to tax at 4
\n\t      1\/2  %. It is not disputed that the  appellant
\n\t      bought  gunny bags for packing wheat  products
\n\t      for  the\tpurpose of sale. The  control  order
\n\t      contemplates a net weight which means that the
\n\t      weight of the bag is included in the price  to
\n\t      be  charged by the dealer. Under the  Explana-
\n\t      tion  when  packing is done in  cloth-bags,  a
\n\t      higher rate is admissible. The scheme  clearly
\n\t      suggests\tthat  the  price of  gunny  bags  is
\n\t      inclusive\t and  where  cloth-bag\tis  used,  a
\n\t      higher  price  over and above  what  has\tbeen
\n\t      provided\t  for\tordinary    containers\t  is
\n\t      permitted.”<\/p><\/blockquote>\n
    It\tis, therefore, perfectly plain that the issue as  to
\nwhether the packing material has been sold or merely  trans-
\nferred without consideration depends on the contract between
\nthe  parties. The fact that the packing is of  insignificant
\nvalue  in  relation to the value of the contents  may  imply
\nthat  there was no intention to sell the packing, but  where
\nany packing material is of significant value it may imply an
\nintention to sell the packing material. In a case where\t the
\npacking material is an independent commodity and the packing
\nmaterial as well as the contents are sold independently, the
\npacking material is liable to tax on its own footing. Wheth-
\ner  a transaction for sale of packing material is  an  inde-
\npendent\t transaction will depend upon several factors,\tsome
\nof them being:\n<\/p>\n
   1.  The  packing material is a commodity having  its\t own
\nidentity and is separately classified in the Schedule;\n<\/p>\n
    2.\tThere  is no change, chemical or  physical,  in\t the
\npacking\t either\t at the time of packing or at  the  time  of
\nusing the content;\n<\/p>\n
314<\/span><\/p>\n
  3.  The packing is capable of being reused after the\tcon-
\ntents have been consumed;\n<\/p>\n
  4.  The packing is used for convenience of  transport\t and
\nthe quantity of the goods as such is not dependent on  pack-
\ning;\n<\/p>\n
5.  The mere fact that the consideration for the packing  is
\nmerged with the consideration for the product would not make
\nthe  sale of packing an integrated part of the sale  of\t the
\nproduct.\n<\/p>\n
In  one case, Punjab Distilling Industries Ltd. v. The\tCom-
\nmissioner of Income Tax, Simla, [1959] Supp. 1 SCR 683 where
\nthe  bottles  were  sold by the assessee  under\t a  buy-back
\nscheme,\t the security deposit for the return of the  bottles
\nwas  held to be merely in the nature of an incentive to\t the
\nbuyer to return the bottles.\n<\/p>\n
    Turning to s. 6C of the Act, it seems to envisage a case
\nwhere it is the goods which are sold and there is no  actual
\nsale of the packing material. The section provides by  legal
\nfiction\t that the packing material shall be deemed  to\thave
\nbeen  sold  along with the goods. In other  words,  although
\nthere is no sale of the packing material, it will be  deemed
\nthat  there is such a sale. In that event, the\tsection\t de-
\nclares, the tax will be leviable on such deemed sale of\t the
\npacking\t material at the rate of tax applicable to the\tsale
\nof the goods themselves. It is difficult to comprehend the
\nneed  for such a provision. It can at best be regarded as  a
\nprovision  by  way  of clarification of\t an  existing  legal
\nsituation.  If the transaction is one of sale of  the  goods
\nonly,  clearly all that can be taxed in fact is the sale  of
\nthe  goods, and the rate to be applied must be read  in\t the
\ncase of such goods. It may be that the price of the goods is
\ndetermined  upon  a  consideration  of\tseveral\t components,
\nincluding the value of the packing material, but nonetheless
\nthe  price  is\tthe price of the goods. It is  not  open  to
\nanyone\tto  say that the value of the  different  components
\nwhich have entered into a determination of the price of\t the
\ngoods  should be analysed and separated, in order that\tdif-
\nferent\trates  of  tax should be applied  according  to\t the
\ncharacter of the component (for example, packing  material).
\nWhat s. 6C intends to lay down is that even upon such analy-
\nsis  the rate of tax to be applied to the component will  be
\nthe  rate applied to the goods themselves. And that  is\t for
\nthe  simple reason that it is the price of the\tgoods  alone
\nwhich constitutes the transaction between the dealer and the
\npurchaser. No matter what may be the component which  enters
\ninto  such price, the parties understand between  them\tthat
\nthe  purchaser is paying the price of the goods. Section  6C
\nmerely clarifies and explains that
\n315<\/span>
\nthe components which have entered into determining the price
\nof  the\t goods cannot be treated separately from  the  goods
\nthemselves,  and  that no account was in fact taken  of\t the
\npacking\t material when the transaction took place, and\tthat
\nif  such  account must be taken then the same rate  must  be
\napplied\t to  the packing material as is\t applicable  to\t the
\ngoods themselves. We find it difficult to accept the conten-
\ntion of the appellants that a rate applicable to the packing
\nmaterial  in the Schedule should be applied to the  sale  of
\nsuch  packing material in a case under s. 6C, when  in\tfact
\nthere was no such sale of packing material and it is only by
\nlegal fiction, and for a limited purpose, that such sale can
\nbe contemplated. In the circumstances, no question arises of
\ns.  6C being constitutionally discriminatory, and  therefore
\ninvalid.\n<\/p>\n
    In\tthe appeals before us, we find that the\t High  Court
\nhas  proceeded on the assumption that the  transactions\t are
\ncovered by trade practice and having regard to the nature of
\nthe goods it has inferred that what is charged is the  price
\nof  the bottled beer or of cement packed in gunny bags,\t and
\nreference  has\talso  been made to the Excise  Law  and\t the
\nCement\tControl Order requiring that the liquor or  the\t ce-
\nment,  as  the case may be, must be sold in  bottles  or  in
\ngunny bags respectively. We are constrained to observe\tthat
\nno attempt has been made by the tax authorities to ascertain
\nthe facts of each case and to determine what were the actual
\ningredients  of the contract and the intention of  the\tpar-
\nties. Assumptions have been made when what was required\t was
\na  detailed investigation into the facts. We have  indicated
\nearlier the several possibilities which are open in cases of
\nthis  kind, and how the ultimate conclusion can\t be  vitally
\naffected by the tests to be applied. Because of the lack  of
\nadequate and clear factual material, the High Court also was
\ncompelled to proceed on the basis of generalised  statements
\nand broad assumptions. We are unable, in the  circumstances,
\nto hold that the cases can be regarded as disposed of final-
\nly. It is regrettable but the cases must go back for  proper
\nfindings on facts to be ascertained on fuller investigation.
\n    In\tthe  circumstances,  the appeals  are  allowed,\t the
\nimpugned judgment and order of the High Court in the several
\ncases  are set aside and the cases are remanded to the\tHigh
\nCourt for further consideration and disposal in the light of
\nthe  observations made by us. In the case of the writ  peti-
\ntions  before  us, the assessing authority  will  allow\t the
\ndealer to show cause and thereafter upon evidence led before
\nit determine the matter. There is no order as to costs.\n<\/p>\n
R.S.S.\t\t\t\t\t\t     Appeals\nallowed.\n316<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Raj Steel & Ors. Etc. Etc vs State Of A.P. & Anr. Etc. Etc on 16 May, 1989 Equivalent citations: 1989 AIR 1696, 1989 SCR (3) 305 Author: R Pathak Bench: Pathak, R.S. (Cj) PETITIONER: RAJ STEEL & ORS. ETC. ETC. Vs. RESPONDENT: STATE OF A.P. & ANR. ETC. ETC. DATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-88360","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRaj Steel & Ors. Etc. Etc vs State Of A.P. & Anr. Etc. 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