9911796707
TMI Blog1991 (6) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... es Tax Act, 1969?" The above said reference came to be made to this Court under the following facts and circumstances: The assessee is a manufacturer of fluorescent tube lamps and general electric service lamps at its factory in the State of West Bengal. Its sales office is at Tilak Road at Ahmedabad, which is a registered dealer under the Gujarat Sales Tax Act, 1969. The applicant had effected certain sales and later on had made an application under section 62 of the Act of 1969 for the purpose of determination of certain questions by the learned Deputy Commissioner. It appears that the assessee had sold 3,550 Nos. of fluorescent tube lamps at the rate of Rs. 10.17 per piece to a sister concern known as M/s. Belrex India Ltd., for an amount of Rs. 36,103.50 and had charged sales tax at the rate of 14 per cent on the sale price as well as surcharge at the rate of 6 per cent on the amount of sales tax. Simultaneously the assessee had issued another bill, wherein it had charged an amount of Rs. 2,166.21 as sales promotion expenses at the rate of 6 per cent on the sale price charged in the earlier bill and had also charged another amount of Rs. 1,065 as the cost of packing materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1980. After hearing both the sides the Tribunal had taken the view that the decision rendered by the Deputy Commissioner, Sales Tax, was alright and that, therefore no interference was necessary. In view of this finding the Tribunal had taken the view that the appeal filed by the assessee deserves to be dismissed. Consequently the appeal came to be dismissed by the orders dated July 28, 1981, by the Tribunal. Later on the assessee had made the necessary application to the Tribunal for making a reference of the above said questions to this Court and ultimately the questions as referred above have been referred to this Court by the Tribunal under section 69(1) of the Gujarat Sales Tax Act, 1969. The first question which falls for our consideration is as to whether on the facts and circumstances of the case the Tribunal was justified in coming to the conclusion that the question regarding sales promotion expenses at 6 per cent on price did not form part of the sale price was beyond the scope of section 62(1)(e) of the Act. When a reference is made to the provisions contained under section 62(1)(e) of the Act, it becomes clear that the Tribunal was justified in saying so. A refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears on behalf of the assessee has invited our attention to certain documents on record with a view to persuade us to take a decision that as a matter of fact there were two different sales, one of the commodity sold and the other one of the packing materials in which the commodity was packed. The reference has been firstly made at annexure 3, the bill dated September 18, 1978, which is in respect of the sale of the article, namely, the fluorescent tubes. The bill which follows the abovesaid bill which finds its place at annexure 4, in which at item No. 2, the outer packing charges of an amount of Rs. 42.12 have been mentioned. Annexure 5 is the bill dated September 22, 1978, which is in respect of certain other articles of an amount of Rs. 36,103.50. The bill which follows the abovesaid bill is at annexure 6, in which there is a mention of an amount of Rs. 1,065 as the outer packing charges as per enclosure No. 1. The sales tax is at the rate of 4 per cent which comes to an amount of Rs. 42.60, a further amount of Rs. 2.56 has been charged on the abovesaid amount at the rate of 6 per cent. With the help of the abovesaid documents which are in the nature of bills, Mr. Pathak, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that all the sales of the company are in packed condition only and that there is not a single sale which would be effected in loose condition without being packed in the respective material. The Tribunal has also preferred to make the position clear by making the following observation: "But, as observed earlier, it would not be feasible for the manufacturer to sell goods throughout India in such loose condition unless the goods are packed in respective packing materials. Hence, the position emerges that the customer has to purchase the goods in such packed condition only. The agreement between the purchaser and seller as evidenced by letter SECT/ DFTR/1/02, dated June 26, 1978, is merely a part of the agreement of nonexclusive dealership agreement executed on the same date. There is thus no option but to purchase the goods in packed condition for which the vendor charges the rate on the basis of a percentage of sale price. Shri Pathak's contention that the property in the goods would be passed since the order on the basis of ex-factory price is executed and the packing done to the goods would be as a result of the subsequent contract, cannot be accepted." By making the abovesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o supply edible oil to specified buyers in loose condition in their own containers, but some of the buyers, however, had requested the assessee to supply edible oil in packed tins and therefore the assessee-mill was required to sell the edible oil in packed tins. The assessee had effected separate sales of the tins and edible oils and had issued separate bills in respect of both the goods. But again resorting to provisions contained under section 15A of the Bombay Act of 1959, a Division Bench of this Court had taken the view that both the sales will have to be treated as a single or integrated sale for the purpose of the rate of sales tax leviable on the sales and taxes shall have to be leviable in respect of both the sales at the rate applicable to the sale of edible oil. It appears that the Tribunal had tried to take support from the abovesaid two decisions, namely, one of Deepak Industries [1975] 35 STC 183 (Guj) and the other one of Ashok Oil Mills (S.T.R. No. 5 of 1978 decided on December 19, 1978-Gujarat High Court). But it requires to be appreciated that the Tribunal was very much conscious of the fact that the facts and circumstances before the Tribunal were entirely dif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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