K NATARAJAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS is an appeal under section 37 of the Tamil Nadu general Sales Tax Act, 1959, against the order of the Board of Revenue (Commercial Taxes), Madras , dated 22nd July, 1972 , passed in exercise of its suo motu powers of revision under 34 of the Act. Most of the facts are not in controversy. The appellants herein purchased Kerosene from M/s. Indian Oil Corporation, Ernakulam, and sold the Kerosene in Tamil Nadu. The kerosene purchased by the appellants was packed in sealed tins and the invoices prepared by the vendors showed the prices of the kerosene and the prices of the tins separately. Similarly, when the appellants sold the said kerosene in Tamil Nadu in the same sealed tins, the appellants also showed the prices of the kerosene separately and the prices of the tins separately. The prices of the tins so sold amounted to Rs. 69, 752. 50 for the assessment year 1969-70. The appellants claimed before the assessing authority that this amount should not be included in the assessable turnover. According to appellants, there was no sale of the tins by the appellants to their customers and, in any events, the turnover referable to this case has to be excluded under rule 6 (cc) (i) of the Tamil Nadu General Sales Tax Rules, 1959. It was not in dispute that the turnover relating to the sale of kerosene was assessable at single points, 5 1/2 per cent. , since that comes under entry 35 of Schedule I to the Act. The assessing officer overruling the objections of the appellants, assessed the disputed turnover at 5 1/2 per cent. When the appellants preferred an appeal to the Appellate Assistant Commissioner, the appellate authority sustained the assessability of the turnover, but assessed it at a different rate. The appellate authority held that kerosene alone was taxable at single point at the rate of 5 1/2 per cent. ; the turnover relating to tins was liable to be taxed at multi-point 3 per cent. Consequently, the disputed turnover was assessed at 3 per cent. only. It is this order of the appellate authority that was sought to be revised by the Board of Revenue in exercise of its suo motu powers of revision under section 34 of the Act. But, when the appellants were called upon to file their objections to the proposed revision by the Board of Revenue, the appellants challenged the conclusion of the appellate authority on the assessability of the turnover itself. Consequently, the Board of Revenue had considered both the questions, namely, the assessability of the turnover as well as the rate applicable to the same in the event of the same being held assessable. The Board of Revenue by the impugned order held that the turnover was assessable and it was assessable and it was assessable at 5 1/2 per cent. just like kerosene. It is the correctness of this order which is challenged in the present appeal by the appellants herein. Under the above circumstances, two questions arise for consideration. One is, whether the disputed turnover is liable to be assessed at all. If the appellants succeed on this, no further question arises in this appeal. However, if the appellants lose on this point, the second question which arises is regarding the actual rate of tax that should be applied to the disputed turnover. As far as the first question is concerned, the learned counsel relied on, as before the authorities below, rule 6 (cc) (i) of the Rules. According to the said provision : "6. The tax or taxes under section 3, 4 or 5 shall be levied on the taxable turnover of the dealer. In determining the taxable turnover, the amounts specified in the following clauses shall, subject to the conditions specified therein, be deducted from the total turnover of a dealer :- (cc) all amounts falling under the head, charges for packing, that is to say, cost of packing materials and cost of labour - (i) when charged for by the dealer separately without including such amounts in the price of the goods sold, in respect of the goods liable to tax at the hands of the assessee :" *

(2.) WE are of the opinion that the appellants are not entitled to rely upon and obtain the benefit of this provision. From a mere reading of the rule, it will be clear that it contemplates only a sale of the contents and incidentally to the sale of the contents, certain packing materials being used by the dealer for delivering the sold goods to the customer and in that process the dealer charging for those packing materials and showing those charges separately without including the same in the price of the goods. In this particular case, from what we have pointed out, it is clear that the kerosene was purchased in sealed tins by the appellants from M/s. Indian Oil Corporation and, in turn, the appellants sold the kerosene in the same condition in which they purchased, namely, in sealed tins. Under those circumstances, we are of the opinion that the contract between the parties, namely the appellants and their customers, was not to sell merely the kerosene, but to sell the kerosene in the packed condition, in other words, to sell the kerosene in sealed tins in which they were. This view of ours derives support from several decisions of this court. United Bleachers Ltd. v. State of Madras is a decision of the Bench of this Court in relation to such a question.

(3.) IN this case, admittedly there was no composite price; but there were two separate prices. The Board of Revenue might have been right if there had been a consolidated or single or composite price charged for the kerosene in packed condition, but so long as the kerosene and the tins were charged for separately, there being no composite price, the rate applicable to kerosene cannot be applied to the turnover referable to the tins also. We may also point out that Patel Volkart Private Limited v. Commissioner of Sales Tax, m. P. has taken the same view where the court stated that : "when different articles are transferred under a composite contract, the rate available for either of the two cannot be charged. The different items will have to be charged at the different rates. " *