COMMISSIONER OF SALES TAX Vs. HABIB KASAMBHAI

JUDGEMENT

(1.) This is a reference under section 61(1) of the Bombay Sales Tax Act, 1959 (hereinafter referred to as "the said Act").

(2.) As only a narrow question has been referred to us for our consideration in this reference, we propose to set out only the facts necessary for the consideration of that question. These facts are as follows : The respondents carried on the business of purchasing old and empty drums and, after repairing the leakages, dents, etc., in the old drums, reselling the same. During the assessment periods from 1st January, 1960, to 31st March, 1960, 1st April, 1960, to 20th October, 1960, and 21st October, 1960, to 8th November, 1961, respectively, the respondents were assessed by the Sales Tax Officer concerned on the basis that they were manufacturers in respect of the aforesaid drums repaired and sold by them. The respondents appealed against these decisions to the Assistant Commissioner of Sales Tax. In regard to this question the appeals were dismissed, although on certain other matters, with which we are not concerned, the appeals were partly allowed. The respondents then filed second appeals before the Sales Tax Tribunal. The Tribunal held that the respondents were not manufacturers in respect of the aforesaid drums and allowed the appeals in this regard. We may make it clear that it was contended by the department before the Sales Tax Tribunal that the respondents were estopped from taking up the contention that they were not manufacturers. But that contention of the department has been negatived by the Tribunal on the basis of the facts found by it. No question has been referred to us in connection with this contention and, hence, we are not concerned with the same in this reference.

(3.) The question which has been referred to us in this consolidated reference, at the instance of the Commissioner of Sales Tax, for our consideration is as follows : "Whether, having regard to the facts and circumstances of the present case, the Tribunal was justified in law in coming to the conclusion that the reconditioning of old drums purchased from unregistered dealers by removing dents and leakages therein did not amount to manufacture as defined by section 2(17) of the Bombay Sales Tax Act, 1959 ?"