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TMI Blog1976 (1) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 1971)?" 2.. The periods of assessment covered in all these cases is Diwali 196566, 1966-67 and 1967-68. The assessee was assessed both under the Madhya Pradesh General Sales Tax Act, 1958, as also under the Central Sales Tax Act, 1956, for each of these years. Besides this, for the year 1967-68, two separate reference applications (annexures U and V) were subsequently submitted on 17th June, 1971, on behalf of the Commissioner of Sales Tax whereby it was prayed to refer yet one more question as to "whether hessian cloth is exempt from tax". Accordingly, the Tribunal for the reasons given in paragraph 10 of the reference order has referred the aforesaid question No. (2) also. The Board of Revenue has sent a common statement of case. 3.. The Board of Revenue by order dated 13th May, 1970 (annexure D), decided the two second appeals preferred by the assessee which relate to the assessment period 1965-66. In this order, the learned Member, Board of Revenue, found as follows: "It is true that in the bills of sale of bidis by the appellant, the selling rate is quoted in terms of thousands of bidis, and the price of packing material has not been separately and expressly charged. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of packing material liable to tax. However, for this year a further point was also raised as to whether hessian pieces are exempt from tax. On this question, following the decision of this court in Commissioner of Sales Tax, M.P. v. New Bhopal Textile Ltd., Bhopal[1970] 26 S.T.C. 306; 1970 Vikrikar Nirnay (3) 234., it was held that hessian cloth is cloth covered by entry No. 6 of Schedule I of the Act and thus decided this question in favour of the appellant. Consequently, these two appeals were partly allowed only to the extent that hessian cloth used in the packing of the bidis shall be exempted from the tax. 6.. Learned counsel for the assessee relied on a decision of this court in Ishag M. Gulam Bidi Merchants, Katni v. Commissioner of Sales Tax, M.P. M.C.C. No. 179 of 1970 decided on 21st September, 1971 (Madhya Pradesh High Court)., as also on a decision of their Lordships of the Supreme Court in Hyderabad Deccan Cigarette Factory v. State of Andhra Pradesh[1966] 17 S.T.C. 624 (S.C.)., and contended that in view of these decisions the packing material would not be liable to sales tax. In M. Ishag M. Gulam's case(2), the Division Bench observed as follows: "But the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annon Dunkerley Co.[1958] 9 S.T.C. 353 (S.C.); A.I.R. 1958 S.C. 560., their Lordships pointed out the essentials of sales as follows: "According to the law both of England and of India, in order to constitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods which of course presupposes capacity to contract, that it must be supported by money consideration, and that as a result of the transaction property must actually pass in the goods. Unless all these elements are present, there can be no sale. Thus, if merely title to the goods passes but not as a result of any contract between the parties, express or implied, there is no sale. So also if the consideration for the transfer was not money but other valuable consideration, it may then be exchange or barter but not a sale. And if under the contract of sale, title to the goods has not passed, then there is an agreement to sell and not a completed sale.". 9.. In Commissioner of Taxes, Assam v. Prabhat Marketing Co. Ltd.[1967] 19 S.T.C. 84 (S.C.)., their Lordships of the Supreme Court have, in relation to the containers in which hydrogenated oil was sold, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as in the case of a contract for sale of cotton bales duly pressed which made it essential that the cotton was to be supplied with the packing material. 16 S.T.C. 240; 17 S.T.C. 624; (1971) 2 S.C.C. 587; 1961 M.P.L.J. 814; 1968 M.P.L.J. 582 and 11 S.T.C. 321 Rel. Misc. C.C. 198/70 D/-2-8-71 and 1968 M.P.L.J. 665 Ref." 12.. It is thus clear that the question whether there is an implied contract of sale of packing material is a pure question of fact depending upon circumstances found in each case. In the instant case before us, the Tribunal has found that the price of the packing materials have been taken into account in fixing the price of bidis. On behalf of the assessee it was also admitted, as has been mentioned by the Tribunal in its order, that the bidis had to be supplied to the purchaser duly packed in crates and the purchaser will not pay the price of bidis as settled if the bidis were supplied in loose or without the packing material. It has also been recorded in the order that the property in the packing material passed on from the assessee to the purchasers. It is apparent that the packing material did form part of the bargain. Although the value of the packing materi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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