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TMI Blog1988 (9) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority treated the transaction in bardana to be separate from the transaction of purchasing agency of gur, etc., and held that the supply of bardana was a sale in the course of inter-State trade and commerce and accordingly he levied Central sales tax on the assessee. On appeal, the Assistant Commissioner (judicial) upheld the said assessment made by the Sales Tax Officer. On further appeal, the Tribunal has, by the impugned order, again upheld the imposition of Central sales tax. On a consideration of the materials on record, the Tribunal arrived at the following conclusions: "1. Separate price for bardana was charged with commission on the price. A separate khata was maintained for the purchase and sale of bardana. 2.. Bardana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand GuIzari Mal, Ghaziabad 1983 UPTC 91. It has further been stated that a special leave petition filed by the Commissioner of Sales Tax against the aforesaid judgment in the case of Mool Chand GuIzari Mal 1983 UPTC 91 (All.) has also been dismissed by the Supreme Court on 2nd November, 1987. The question, therefore, that falls for consideration is as to which of the decisions of this Court stated above is applicable to the facts found in the present case. In the case of Commissioner of Sales Tax v. Vanaspati Trading Company [1979] 44 STC 491 (All.); 1979 UPTC 1011 the assessee dealt in foodgrains and oil-seeds and also acted as purchasing agent for ex-U.P. buyers. It purchased foodgrains and oil-seeds for ex-U.P. principals and therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilised its gunny bags for packing and storing the commodities purchased and charged the price of gunny bags from the ex-U.P. buyers. In this situation, the court concluded that the assessee was acting in two capacities, one as owner of the gunny bags and the other as the purchasing agent of ex-U.P. principals and that on these facts there was a transfer of property in the gunny bags from the person who was the owner of the gunny bags to the purchasing agent. In that case also the assessee had charged the price of gunny bags from ex-U.P. principals in pursuance of an agreement with his ex-U.P. principals to supply the goods in question. Thus all the ingredients of the sale were present. In so far as the question of movement of gunny bags ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the goods outside Uttar Pradesh and the other as the owner of the gunny bags which, under the implied contract, he had sold in the course of the inter-State sales to the ex-U.P. principals who purchased the said foodgrains. In the case of Commissioner of Sales Tax v. Mool Chand GuIzari Mal 1983 UPTC 91 it was held that although the assessee was reimbursed the price of chataee and sutli yet there was no implied contract to sell the same and hence no sale of gunny bags occurred at all. Therefore, there was no liability to pay Central sales tax. It has been specifically held in paragraph 22 in the said case that there is no finding by any of the authorities that there was an agreement to sell bardana between the assessee and the ex-U.P. p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings recorded by the Tribunal which has been arrived at on an appreciation of evidence and on consideration of the materials on record and which has also not been challenged by the learned counsel for the assessee, in my opinion, the Sales Tax Tribunal is right in law in holding that the assessee is liable to pay Central sales tax on the sales of gunny bags. The other submission made by the learned counsel for the assessee is that the assessee had charged commission on the amount of bardana also. Hence it is incidental to the purchase of commission agency and no Central sales tax is payable on the sale of bardana. In view of the aforesaid discussion of the legal position regarding the liability to Central sales tax, to my mind, the mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not in his own name, simply because the assessee was not the owner of these goods. But he despatched these goods in his own name as a sender. (5) The certificates issued by the ex-U.P. dealers are dated 22nd August, 1981. This means that sales to them have been made before this date. But khata entries were made on 28th August, 1981. This was admitted. It could not be satisfactorily explained why entries were made so late. This leads to the conclusion that the certificates are not worth reliance. It would be clear from the above facts that the assessee charged selling commission from U.P. principals and therefore it was clearly a sale. In the definition of "sale" under the Central Sales Tax Act sales by commission agents have also be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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