K P BHARGAVA Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) This is a reference under Section 11 of the U.P. Sales Tax Act made by the learned Judge (Revisions) at the instance of G.G. Industries of Belanganj, Agra (hereinafter called the assessee). The question of law which has been referred for our decision is as follows :- Whether on the facts proved in this case the turnover in dispute can be held to be the turnover of confectionery sold in sealed containers ?

(2.) The assessee is a firm which carries on the business of manufacture and sale of confectionery such as chocolate, lollipops, lemondrops etc. In the assessment for the year 1948-49 the assessee claimed an exemption for the turnover representing the sale of confectionery amounting to Rs. 1,50,535-1-6 on the ground that they had obtained exemption certificate regarding the sale of their confectionery from the Government. The learned Sales Tax Officer disallowed the exemption as in his opinion the confectionery was sold in sealed containers and as such the turnover of confectionery was liable to be taxed and he taxed it at the ordinary rate of three pies per rupee and determined Rs. 1,548-10-0 as the sales tax thereon. Being aggrieved against the order of the Sales Tax Officer the assessee went up in appeal. The learned Judge (Appeals) allowed the appeal on the ground that the Sales Tax Officer did not record a finding that the containers in which the confectionery was sold were sealed. It was further held by him that the word "sealed" meant certification by a seal and merely wrapping with papers the cardboard boxes containing the lollipops would not amount to certification by a seal. On revision by the Commissioner, Sales Tax, the learned Judge (Revisions) reversed the decision of the Judge (Appeals) being of the opinion that the expression "sealed container" was intended to mean that the container in which the confectionery was sealed was fastened up or enclosed securely and ought not be given the narrow meaning which the learned Judge (Appeals) gave to that expression. It was found that the cardboard boxes in which the lollipops were kept had a lid which was not fastened or secured to the box by any label or seal and could be removed without breaking any seal or label. The whole box with the lid on was then wrapped up in cellophane paper whose ends at two sides were secured by pasting with some adhesive material. There was no seal or label of any kind pasted at the point where the ends of cellophane wrapping were secured.

(3.) The answer to the question referred depends upon the interpretation of Clause (2) of the Notification No. S.T.-118/X-929-48, dated 7th June, 1948, issued by the Governor in exercise of powers conferred by Section 4 of the U.P. Sales Tax Act, 1948, by which it was notified that Section 3 of the Act was not to apply to the sale of certain categories of goods by the dealers described in that notification on certain conditions. Clause (2) of the said notification which is relevant for the purpose of the present case is as follows :