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TMI Blog1971 (4) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... tement of the case in regard to certain matters. The Judge (Revisions) has submitted the additional statement of the case. The case has now been heard by us. The assessment year is 1958-59. The assessee, M/s. Dyer Meakin Breweries Ltd. (now styled as Mohan Meakin Breweries Ltd.) is a dealer, inter alia, in beer, rum and country liquor. In the said assessment year it sold beer and country liquor to licensed wholesale vendors and rum to the military. Beer and country liquor were supplied in glass bottles, and rum in wooden casks. While selling, it used to receive from the purchasers a certain amount of money as deposit for each bottle and each cask. Broadly speaking, the deposit was refundable on return of the bottle and the cask. In the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was carrying on business of selling spirit, liquor, beer and carbonic acid gas. The application does not state that it was also carrying on business of selling containers. As regards sale of rum to the army, there is annexed to the supplementary statement of the case a circular from the Canteen Stores Department (India), Bombay, to all its Units located in U.P. This circular is dated 15th January, 1953. It contains conditions on which the assessee would supply rum to the Units in wooden casks of different capacities against deposits of certain amounts. It states that the assessee will supply rum in 30, 20, 10 and 5 gallons capacities wooden casks against deposits of Rs. 35, Rs. 25 and Rs. 10 per cask respectively. It further states that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded on them. The colour of the capsules and labels shall be as prescribed by the Excise Commissioner. According to sub-rule (6) the assessee shall be bound to supply spirit in bottles of standard sizes of one-sixth, one-twelfth and one-twenty-fourth of an imperial gallon, properly and securely corked, labelled and capsuled according to the specification prescribed by the Excise Commissioner. Sub-rule (7) has an important bearing on the question before us. It reads: "The rates sanctioned for the cost of bottles......shall be sanctioned by the Government from time to time. The retail vendor shall have to pay these in addition to the price of spirit at the time of taking issues of spirit. But he shall be entitled to a refund of the cost char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the dealer was that he used to supply these three articles in containers. The price of beer was separately charged and the agreement with respect to container was that at the scheduled rate the price was to be deposited beforehand along with the delivery of container and on the contingency of re-delivery back of the containers the price so deposited was to be refunded in whole or in part as the case may be whether the containers were re-delivered as a whole or partially." It appears to us that the conditions on which a deposit against beer bottles was made are substantially similar to the conditions on which a deposit against country liquor bottles was made. Do these facts and circumstances establish a sale or a bailment? The standing c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of the casks. The Units are bound to return them after they have been emptied of their contents. There is neither evidence nor a finding that they had been so emptied. So the bailment apparently never came to an end. The case of country liquor bottles has a close resemblance to the case of casks. Sub-rule (7) prescribes no time-limit for the return of bottles. The wholesale vendor is entitled to return them and claim refund. The absence of a term for hire no doubt distinguishes the case of bottles from the case of casks; but it does not change the character of agreement from a bailment to sale. The sale of containers is not in the way of the trade of the assessee. It does not receive the cost of bottles as "price". The cost is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elivered to us...' The true construction of the contract is to give (the trader) an interest only until the casks are empty......The interest of (the trader) was never meant to extend beyond the right to keep casks until the porter was consumed." This observation received the approval of Lord Blanesburgh in a similar case, William Leitch and Co. v. Leydon [1931] A.C. 90 at pp. 104, 105, 106. According to him Manders(2) "shows that in such cases as the present the manufacturers' customers may be no more than mere bailees of the invoiced bottles entitled to retain them until they are empty........" When it was pointed out that unlike the case before him, there was no deposit against barrels in Manders(1849) 4 Ex. 339., Lord Blanesburgh said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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