DY COMMR OF SALESTAX Vs. SATHYAVAN

JUDGEMENT

(1.) The question of law that falls for decision in all these tax revision cases relates to the tax applicable to the value of containers included in the sales turnover of coconut oil and oilcake sold inter State. The reference to facts, for the purpose of discussion, would be to those relating to T. R.C.No.46 of 1984.

(2.) For the assessment year 1978-79 the assessing authority assessed the value of containers at 4 per cent where the sale was covered by valid C Forms, and at 10 per cent where it was not supported by valid C Forms. On appeal by the assessee, the Deputy Commissioner (Appeals) held that since the value of the contents, that is, coconut oil and oilcake, sold inter State, was taxed only at 1 per cent, the value of the respective containers was also taxable at 1 per cent only. The Revenue and the assessee appear to have agreed before the Deputy Commissioner (Appeals) that there had been a transfer of containers along with the contents. The only point in issue was, whether the value of the containers (tins and gunnies) was to be taxed at 1 per cent as in the case of the contents (coconut oil and oilcake), as held by the Deputy Commissioner (Appeals) or at 4 per cent where the sale was covered by valid C Forms and at 10 per cent where it was not supported by valid C Forms as assessed by the assessing authority. The appeal filed by the Revenue against the decision of the Deputy Commissioner (Appeals) having been dismissed by the Appellate Tribunal, these tax revision cases have been filed.

(3.) Sale as defined in S.2(xxi) of the Kerala General Sales Tax Act, 1963 (the Act) means "every transfer whether in pursuance of a contract or not of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration ..." As already noticed, the parties are in agreement with the proposition that the property in the containers was transferred to the buyer along with the contents. There appears to be no document indicating whether the containers were separately charged. In the absence of any documentary evidence, an inference could be drawn that the containers were used only as a cheap vehicle for the transport of the goods, and no value was charged separately for them. The question as to whether in a given circumstance the containers would attract tax, and if so at what rate, is essentially a question of fact, depending upon various circumstances like the existence of or otherwise of an agreement for sale thereof, whether they retained their physical or commercial identity after the contents were removed, whether separate bills have been made out for the containers or there was separate itemising in the bill made out for the goods, what its value in proportion to the goods is, etc. None of these factors by itself would be decisive of the question, though each one of them might be helpful to understand the nature of the transaction.