9911796707
TMI Blog1975 (8) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... lls salt packed in gunny bags. According to the petitioner, the salt comes packed in gunny bags or loose and when the same comes loose, the quantities of salt are packed in gunny bags and sold as such. The petitioner states that no separate price is charged for the said bags which are used for packing of the salt. The petitioner further states that there was no express or implied agreement for sale of the gunny bags used for packing of salt with the parties to whom the salt was and/or is sold. Gunny bags are goods within the meaning of the Bengal Finance (Sales Tax) Act, 1941. So the question is whether the salt sold by the petitioner in gunny bags were liable to sales tax. If the gunny bags were sold and prices were charged for the gunny b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcle to the aforesaid state of affairs and observed, inter alia, as follows: "....... In this State the value of containers of goods, sales of which are exempted from tax under the provisions of law, were not so long being taxed under administrative instructions if the value of containers was not separately charged for. Since the Supreme Court has clarified the position now, it has been decided that in such cases tax should be charged on the value of containers even if such value is not separately charged for. But to avoid complications and hardship to the dealers it has been decided administratively not to give effect to the said decision in respect of transactions made before 1st July, 1969." Salt is not liable to sales tax under the Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose sales tax in respect of containers of goods which were not liable to tax under the provisions of law. The question, therefore, as mentioned by the Supreme Court, is purely a question of fact to 'be decided on the facts of each case. For this purpose books of account with all supporting documents, relevant final accounts and balance sheet for the period concerned will be very relevant. In this case, the concerned officer has merely asked the dealer to produce the books of account, all supporting documents, relevant final accounts and balance sheet. In my opinion, it cannot be said that he has acted in any manner in excess of jurisdiction or contrary to the provisions of law. Counsel for the petitioner drew my attention to the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the remedy by way of a writ must, on principle and authority, be available to the party aggrieved." That principle, again, in my opinion, cannot be invoked in the instant case. Counsel for the petitioner also drew my attention to the decision of the Madhya Pradesh High Court in the case of United Excise v. Commissioner of Sales Tax, M.P., Indore[1971] 28 S.T.C. 16. There also on the facts, it was found that the assessing authority was acting beyond the jurisdiction. Reliance was placed on the observations of the Supreme Court in the case of Carl Still G. m. b. H. v. State of Bihar[1961] 12 S.T.C. 449 at 458 (S.C.); A.I.R. 1961 S.C. 1615 at 1620, para 11. Counsel for the petitioner drew my attention to the observations of the court in paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication under article 226 of the Constitution, the petitioner has made a statement which is not controverted by counter-affidavit or an affidavit-in-opposition by the respondents, the jurisdiction of the respondent-officer to determine that question is not ousted. In that view of the matter, there is nothing in the notice issued which calls for interference in this application under article 226 of the Constitution. In the premises, the rule nisi is discharged. There will, however, be no order as to costs. Interim orders are vacated. The order, however, will not prejudice the right of the petitioner to take all legal grounds before the assessing authority. Let the operation of the order be stayed for a fortnight from date. Rule dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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