1976 (7) TMI 155 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Whether the use of hessian cloth and hoop iron in packing pressed cotton waste constitutes a sale liable to sales tax.
2. The nature of the contract between the respondent-assessees and their customers-whether it is a works contract or a sale contract.

Issue-wise Detailed Analysis:

1. Use of Hessian Cloth and Hoop Iron:
The primary issue is whether the hessian cloth and hoop iron used by the respondent-assessees in packing pressed cotton waste can be considered a sale, thereby attracting sales tax under the Tamil Nadu General Sales Tax Act, 1959. The assessing authority had treated the use of these materials as a sale and assessed it to sales tax by adding a 10% profit to the cost price due to the lack of separate accounts. The respondents contended that there was no sale of these materials to their customers, which the Tribunal accepted, ruling that the contract was a works contract or labour contract without any implied agreement to sell the packing materials.

2. Nature of the Contract:
The judgment examines whether the contract between the respondents and their customers is a works contract or a sale contract. It is well-settled that in a works contract, the supply of materials incidental to the execution of the contract does not constitute a sale unless there is an express or implied agreement to sell those materials. The court referred to previous judgments, including United Bleachers Ltd. v. State of Madras, which established that the use of materials in a works contract does not imply a sale unless explicitly agreed upon.

The court noted the following facts:
- No accounts were maintained showing sales of hessian cloth and hoop iron.
- These materials were used in packing the pressed cotton waste.
- The Appellate Assistant Commissioner had inferred an implied contract for the supply of materials based on the value charged.
- The Tribunal found no indication in the bills that any charge was made for the supply of those materials, and this finding was not challenged.

The court emphasized that the intention to sell the materials must be clear and that the mere use of materials in the execution of a works contract does not constitute a sale. The court also distinguished between cases where the principal contract involves the sale of goods as packed and cases where the contract is for services involving incidental use of materials.

Conclusion:
The court concluded that the contract in question was principally a works contract, and the use of hessian cloth and hoop iron was incidental to the execution of that contract. There was no express or implied agreement to sell these materials. The Tribunal's finding that there was no charge for the packing materials was upheld, and the department failed to establish the existence of an implied contract for the sale of the packing materials. Consequently, the amounts in question could not be subject to tax under the Tamil Nadu General Sales Tax Act, 1959. The revision petitions were dismissed with costs awarded to the respondent-assessees.