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TMI Blog1995 (2) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... on various decisions, confirmed the order passed by the Appellate Assistant Commissioner. It is against that order, the present revision has been preferred by the assessee. 2.. Learned counsel appearing for the assessee submitted that in view of the provisions contained in rule 6(cc)(ii) of the Tamil Nadu General Sales Tax Rules irrespective of the fact whether the sale price of the container is stated separately in the bills or included in the total sale price of the petroleum products, the assessee is entitled to exemption of the sale turnover of the container. According to the learned counsel for the assessee, the decision reported in [1982] 51 STC 171 (Mad.) [Ramco Cement Distribution Co. (P.) Ltd. v. State of Tamil Nadu] and the decision of the Supreme Court in [1993] 88 STC 151 (Ramco Cement Distribution Co. Pvt. Ltd. v. State of Tamil Nadu) are applicable to the facts of the present case. It was submitted that in the abovesaid two decisions, there was no mention about rule 6(cc)(ii) of the Tamil Nadu General Sales Tax Rules. In other words, according to the learned counsel, the abovesaid provision was not considered either by this Court or by the Supreme Court in the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there was intention to sell the packing material also. It was further submitted that in a case where the packing material is an independent commodity and the packing material as well as the contents, is sold independently, the packing material is liable to be taxed on its own footing. It was further pointed out that in [1982] 51 STC 171 (Mad.) [Ramco Cement Distribution Co. (P.) Ltd. v. State of Tamil Nadu] it was held that when the packing charges are charged by the dealer separately without including such amount in the price of the goods sold, there will be no difficulty in arriving at the conclusion that the charges for packing material will have to be deducted from the total turnover of a dealer under rule 6(cc) of the Rules when such charges are shown separately. This finding of the Madras High Court in [1982] 51 STC 171 [Ramco Cement Distribution Co. (P.) Ltd. v. State of Tamil Nadu] was reversed by the Supreme Court in [1993] 88 STC 151 (Ramco Cement Distribution Co. Pvt. Ltd. v. State of Tamil Nadu). Under such circumstances, it was submitted that the assessee is not entitled to claim exemption with regard to the sale turnover of the container. For all these reasons, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the actual freight payable up to the railway station of the customer's place. The questions were whether they could claim deduction in respect of the freight charges, packing charges collected and excise duty on packing materials from the total turnover liable to tax under the Central Sales Tax Act, 1956, the Tamil Nadu General Sales Tax Act, 1959 and the Tamil Nadu Additional Sales Tax Act, 1970. While answering these questions, this Court held as under: "that (1) the provisions of the Cement Control Order, 1967, had an overriding effect not only on the terms of the contract between the parties as regards the sale of cement, but also on the definition of 'sale price' quoted in section 2(h) of the Central Act. In other words, under the provisions of the Cement Control Order, it was the producer who was liable to pay freight though he might be able to recover it from the purchaser as part of the price. It would be so, notwithstanding the second part of the definition of 'sale price' in section 2(h) of the Central Act. By virtue of the provisions of the Cement Control Order, freight formed part of the sale price quoted within the meaning of the first part of the definition. Hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to tax at the hands of the assessee are not liable to be taxed. Therefore, the decision rendered by the Supreme Court in Ramco Cement Distribution Co. Pvt. Ltd. case [1993] 88 STC 151, will not be applicable to the facts arising in the present case. 10.. Reliance was also placed upon the decision reported in State of Tamil Nadu v. V.V. Vanniaperumal Co. [1990] 76 STC 203 [FB]. According to the facts arising in that case, the respondent, a dealer in gingelly oil and oil cakes, purchased oil in barrels, polythene cases and also in 16 kg. sealed tins. These 16 kg. tins of oil were in turn sold to customers who were charged separately for the oil and the tins. On reference, a Full Bench of this Court held that what was sold was "tin of oil", and not oil alone. The bargain of sale was for "tin of oil", and the goods sold were composite goods. Thus the total turnover including the price of the tins and of the oil was taxable, the fact that they were charged separately in the bills was immaterial, the packing charges were deductible only when packing was done subsequent to the sale. According to the facts arising in the abovesaid decision, the sale value of both oil and tin was taxab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) the packing is capable of being reused after the contents have been consumed; (4) the packing is used for convenience of transport and the quantity of the goods as such is not dependent on packing; (5) the mere fact that the consideration for the packing is merged with the consideration for the product would not make the sale of packing an integrated part of the sale of the product." In this decision also, the Supreme Court is not concerned with the provision like rule 6(cc)(ii) of the Tamil Nadu General Sales Tax Rules. The Supreme Court pointed out in that decision that in a case, where packing material is an independent commodity and the packing materials as well as the contents are sold independently, the packing material is liable to tax on its own footing. It further pointed out the mere fact that the consideration for the product would not make the sale of packing an integrated part of the sale of the product. But a plain reading of rule 6(cc)(ii) would go to show that the exemption is available on the sale value of packing materials whether or not such amounts are specified and charged for by the dealer separately in respect of the goods not liable to tax at the hand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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