COMMISSIONER OF SALES TAX Vs. NATIONAL CHIKKI MART

JUDGEMENT

(1.) This is a reference under section 61(1) of the Bombay Sales Tax Act, 1959 (hereinafter referred to as "the said Act"), made at the instance of the Commissioner of Sales Tax. The question referred to us for our determination is as follows :

(2.) The facts giving rise to this question are as follows : The respondent-firm is a manufacturer of chikki and farsan and is a registered dealer under the said Act. It appears that the respondent sold the chikki made by it in the following four ways : (1) loose, (2) in ordinary paper packing, (3) inserting the paper packed chikki in heat-sealed polythene bags, and (4) putting chikki in cardboard box and inserting it in heat-sealed polythene bags. In respect of the assessment period from 13th November, 1966, to 2nd November, 1967, the Sales Tax Officer, in effect, held that the chikki sold by the respondent in the manner described in categories (3) and (4) set out aforesaid was sold in sealed containers. It may be mentioned here that the contention of the respondent was that the sales of chikki made by the respondent were covered by entry 31 of Schedule C to the said Act. This contention was rejected by the Sales Tax Officer as far as the chikki sole by the respondent in the manner described in categories (3) and (4) above was concerned. It was held by the Sales Tax Officer that the chikki sold as described in categories (3) and (4) was covered by entry 6 of Schedule E to the said Act. The appeal preferred by the respondent against this order was dismissed by the Assistant Commissioner of Sales Tax. The respondent then filed a second appeal before the Tribunal. The Tribunal came to the conclusion that a heat-sealed polythene bag was not a container and that the question of considering whether it was a sealed container did not arise. They, however, further held that it could not be said that the polythene bags in which the chikki was sold by the respondent as aforesaid were sealed containers, because such a polythene bag did not require a knife or even nails for cutting the plastic covering but any portion of it could be removed with fingers. It was held by the Tribunal that the expression "sealed" means bearing the impression of wax, etc., which is evidence of guarantee of authenticity or fastened with a lid so close to the contents that access is impossible without breaking the fastening. It is the correctness of this conclusion which is challenged by the department before us by way of the question raised.

(3.) Before going to the contentions raised it may be useful to refer to the entries in question. Briefly stated, entry 31 of Schedule C to the said Act refers to sweets and sweetmeats except when sold in sealed containers of weight not exceeding five kilograms in each container. Entry 6 of Schedule E covers food-stuffs and food provisions of all kinds when sold in sealed containers of weight not exceeding five kilograms in each container but excluding certain items with which we are not concerned here. Very briefly stated the question here is whether the polythene bags into which the paper-packed chikki or the cardboard boxes containing the chikki were inserted and which polythene bags were heat-sealed can be said to be "hear-sealed containers", it being the admitted position that the weight thereof did not exceed five kilograms.