9911796707
TMI Blog1986 (2) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate. The petitioner by a letter dated 28th April, 1975, disputed the said allegations made by the respondent No. 1. By a letter dated 9th March, 1976, to the Secretary, Bihar Chamber of Commerce, the Deputy Commissioner of Commercial Taxes, Bihar, represented, inter alia, that if the registration certificate of any dealer incorporated that the dealer utilises the cardboard boxes purchased for the purpose of packing, then in that situation such cardboard boxes sold to such dealer would be free of special sales tax under the said Act. On 8th July, 1976, the Tribunal passed the order in the case of M/s. Card Board Products (Gomia). The Tribunal in that case did not accept the contention of the Deputy Commissioner contained in the said letter. The Tribunal held that carton means a box made from thin paste board and therefore covers cardboard boxes. In view of the said decision of the Tribunal in the Card Board Products (Gomia), the respondent No. 1 by a letter dated 26th August, 1976, directed the petitioner not to furnish any declaration form IX and to pay appropriate tax on entire purchase of the packing materials, failing which entire purchase on the strength of the said decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tends that the petitioner is not liable to pay any tax on the purchase of the packing materials. On the other hand it is contended by the respondents that section 5 of the said Act would be attracted in this case as held by the Tribunal in the case of Card Board Products (Gomia). A contention has also been urged that the writ application is not maintainable as the Tribunal's order in the case of Card Board Products (Gomia) is the subject-matter of reference pending before the Patna High Court. Accordingly this Court should not decide this controversy. It is also contended that this Court has no jurisdiction as the sales tax authorities are in Bihar against whom the relief is claimed in this proceeding. I have considered the rival contentions. I would like to dispose of the objection raised by Mr. Chatterjee, learned Advocate on behalf of the respondents, as to the maintainability of the writ application. The pendency of reference in the Patna High Court in the case of another dealer even though the point at issue may be similar cannot take away the jurisdiction of this Court to decide in this writ proceeding the legal contentions urged. I am therefore unable to accept the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... description of goods are specified as being required for resale by him or for use by him in the packing of goods which he sells: Provided that the State Government may, in respect of any goods or class or description of goods or any class of dealers notified in this behalf, direct that the said tax shall, subject to such conditions and restrictions as may be specified in the notification, be paid at any other point." A series of sales necessarily postulates more than one sale. There must be a set of sale in line or in succession. Therefore, before the tax can be imposed under section 5 of the Act it is to be shown that the commodity itself is passing through series of sales by successive dealers like distributor, wholesaler and retailer who can be said to carry on business of buying and selling of the goods in question. It is contended that in the present case there has been only one sale of the packing materials which the petitioner utilised. Such packing materials cannot be sold again in view of the restriction contained in the Explosives Act and Rules. It is no doubt true as held by the Allahabad High Court in Gurna Mal v. State of Uttar Pradesh reported in [1970] 26 STC 270 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale by the Card Board Products (Gomia) to the petitioner. The petitioner is prohibited from selling those packing materials after their use in the packing of the explosives. It has not been disputed that the packing materials have been used by the petitioner only for specified purpose of packing the explosives and not for any other purpose. I am, therefore, of the view that section 5 of the Bihar Sales Tax Act is not attracted on the facts and circumstances of this case. Mr. Chatterjee relying on the relevant notification has submitted that the petitioner purchased cartons which fall within the goods specified in the notification. The notification dated 12th February, 1966, provides that special sales tax would be leviable on the following goods: "Paper including all kinds of paste board, millboard, straw-board, cardboard, blotting paper, newsprint, cartridge paper, packing paper, paper bags, cartons, cards and blank registers, note books, exercise books, envelopes, labels, letter pads, writing tablets and flat files made out of paper." On the other hand it is contended by the petitioner that the said notification includes only cartons and does not include boxes or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the registration certificate, it is evident that the sales tax authorities understood and treated "carton" and "boxes" as two different and distinct goods. In commercial parlance the two are different goods having different purposes whereas carton is never used as an exterior container for transportation, box is a rigid container used mainly as an exterior container for transportation. The notification in question includes only "carton" and does not include "boxes" or outer packages made in cardboard. The boxes purchased by the petitioner from the respondent No. 5 are not "cartons" and do not fall within any of the goods specified in the notification. I am, therefore, of the view that the said notification whereby the special sales tax is sought to be levied has no application to the facts and circumstances of this case. Accordingly, the respondents have acted without jurisdiction in purporting to take steps for amending the registration certificate of the petitioner with reference to or on the basis of the said notification in respect of purchase of cardboard boxes from the respondent No. 5. For the reasons aforesaid this application succeeds. The rule is made absolute. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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