1974 (6) TMI 56 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Whether de-oiled cakes and oil-cakes are different commercial commodities for the purposes of set-off, draw-back, or refund under rule 42 of the Bombay Sales Tax Rules, 1959.
2. Whether bardans (containers) can be deemed to have been sold along with de-oiled cakes under section 15A of the Bombay Sales Tax Act, 1959, for the purpose of set-off, draw-back, or refund under rule 43.
3. Whether the applicant can plead an agreement for the sale of bardans at the stage of second appeal and introduce fresh evidence before the Tribunal.

Issue-wise Detailed Analysis:

Issue 1:
This issue was not pressed by the petitioner-assessee and thus does not survive for consideration.

Issue 2:
The petitioner-assessee, operating a solvent extraction plant, purchased oil-cakes and bardans separately. After extracting oil, the resultant de-oiled cakes were packed in bardans and sold. The petitioner claimed a set-off under rule 43 of the Bombay Sales Tax Rules, 1959, for the tax paid on the purchase of bardans used in packing the de-oiled cakes. The Sales Tax Officer disallowed this claim, stating that no separate sale of packing materials was involved when goods are sold in packing materials. This decision was upheld by the Assistant Commissioner and the Appellate Tribunal. The Tribunal held that section 15A of the Act, which deems packing materials to have been sold along with the goods, was only for the purpose of fixing the rate of tax and not for granting set-off under rule 43.

Section 15A was introduced to apply a single rate of tax when goods are sold along with their containers, to avoid complications in assessing turnover. The fiction created by section 15A is limited to determining the rate of tax and does not extend to treating the sale of packing materials separately for the purpose of set-off under rule 43. The petitioner did not provide evidence that the sale of bardans was separately contemplated at the time of the sale of goods. Therefore, the Tribunal's view that the fiction under section 15A does not help in claiming set-off under rule 43 is correct.

Issue 3:
This issue was also not pressed by the petitioner-assessee and thus does not survive for consideration.

Conclusion:
The Tribunal's decision on question No. 2 is upheld, and the answer to this question is in the negative. The petitioner shall bear the costs of the respondent-State in this reference.

Reference Answered Accordingly.