1965 (1) TMI 57 - SC - VAT and Sales Tax

Whether the parties in the instant case, having regard to the circumstances of the case, intended to sell or buy the packing materials? Whether the subject-matter of the contracts of sale was only the cigarettes and that the packing materials did not form part of the bargain at all, but were used by the seller as a convenient and cheap vehicle of transport? Whether, when a trader in cigarettes sold cigarettes priced at a particular figure for a specified number and handed them over to a customer in a cheap card- board container of insignificant value, he intended to sell the cardboard container and the customer intended to buy the same? Held that - Appeal allowed by way of remand. The High Court may consider afresh the question whether the packing materials were the subject-matter of the agreements to sell, having regard to the relevant material and in the light of the observations made in the judgment. If in its opinion the necessary material is not on record it can get a finding from the Sales Tax Appellate Tribunal in that regard.

Issues Involved:
1. Whether the assessee sold cigarettes at the same rate irrespective of the packing materials used.
2. Whether the packing materials were the subject of the agreements of sale between the assessee and its customers.
3. Whether the exemption from sales tax under the Andhra Pradesh General Sales Tax Act, 1957, covered the packing materials.

Issue-wise Detailed Analysis:

1. Same Rate for Cigarettes with Different Packing Materials:
The appellant contended that it sold cigarettes at a uniform rate of Rs. 8.75 per thousand, regardless of whether they were packed in cardboard or wooden cases and irrespective of the sale location (within or outside Andhra Pradesh). This contention was crucial as it would determine if the packing materials were part of the sale agreements. However, the Commercial Tax Officer, Assistant Commissioner of Commercial Taxes, and the Sales Tax Appellate Tribunal did not thoroughly investigate this claim. The High Court also overlooked this aspect, leading to a remand for further consideration.

2. Packing Materials as Part of Sale Agreements:
The appellant argued that the packing materials (cardboard and dealwood boxes) were not sold separately but were merely used to transport the cigarettes. The Commercial Tax Officer deemed the packing materials as sold with the cigarettes, based on the practice of other manufacturers and the lack of specific evidence from the assessee. The Assistant Commissioner and the Tribunal upheld this view, suggesting that the cost of packing materials was included in the cigarette price. The High Court inferred an implicit contract to sell the packing materials. The Supreme Court emphasized that the determination of whether the packing materials were part of the sale agreements was a factual question, requiring a detailed examination of relevant materials, accounts, and circumstances.

3. Scope of Exemption from Sales Tax:
The appellant argued that under the Act, the turnover of sale transactions, including packing materials, was exempt from sales tax due to a notification exempting tobacco and its products. The State countered that the exemption was limited to cigarettes and did not extend to packing materials. The Supreme Court clarified that the definition of "turnover" included packing materials if charged separately. The notification exempted only tobacco and its products, not packing materials. The Court also dismissed the argument that excise duty on cigarettes, which included packing materials, precluded sales tax on packing materials, affirming that the State could levy sales tax on packing materials if they were part of the sale agreements.

Conclusion:
The Supreme Court set aside the High Court's order and remanded the case for fresh consideration of whether the packing materials were part of the sale agreements. The High Court was directed to examine relevant materials and could seek a finding from the Sales Tax Appellate Tribunal if necessary. The costs were to abide by the result of the reconsideration.

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