DEEPAK INDUSTRIES Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE Tribunal has referred to us in this reference the following three questions for our opinion : " (1) Whether, on the facts and in the circumstances of the case, and for the grant of set-off, draw-back or refund under rule 42 of the Bombay Sales Tax Rules, 1959, de-oiled cakes and oil-cakes are different commercial commodities and there is no resale of oil-cakes, when after extracting oil therefrom, the resultant de-oiled cakes are sold by the applicant ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal has erred in holding that bardans cannot be deemed to have been sold along with the de-oiled cakes packed therein under section 15a of the Bombay Sales Tax Act, 1959, for the purpose of granting set-off, draw-back or refund under rule 43 of the Bombay Sales Tax Rules, 1959, in respect of the tax paid on the purchases of oil-cakes ? (3) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the applicant should not be allowed to plead an agreement either express or implied for sale of bardans at the stage of second appeal and to adduce a fresh evidence before the Tribunal to support such agreement ?"

(2.) OUT of these three questions, questions Nos. (1) and (3) now do not survive to be considered because they are not pressed by the petitioner-assessee. We are, therefore, left only with question No. (2) and in the following portion of this judgment, we shall refer only to those facts which are relevant to this question.

(3.) RULE 43 of the RULEs provides for draw-back, set-off, etc. , of tax paid on goods sold in the course of inter-State trade or of export. The application of this rule is subject to several conditions, but reference to these conditions is not necessary for the purpose of this case because it is not the case of the revenue that they are not satisfied. The case of the revenue, however, is that rule 43 has no application to the facts of this case because that rule postulates the sale of those very goods which were purchased previously on payment of tax. According to the revenue, in this case there has not been any sale of bardans on the purchase of which tax was previously paid because when the goods are sold packed in packing materials the sale is the sale of goods only and the property in the packing materials passed only incidentally. In reply to the petitioner's contentions regarding section 15a the revenue has contended that the fiction contemplated by this section is only for the purpose of fixing the rate of tax and hence it cannot be carried further for the purpose of showing that there was the sale of bardans within the meaning of rule 43.