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TMI Blog1999 (5) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the dealer collects a refundable security from the consumer. The ownership of the cylinder does not get transferred to the consumer. 3.. On March 25, 1998, the Assessing Authority imposed a levy of Rs. 14,06,173 in respect of the assessment year 1994-95 on the petitioner on the assumption that it sold the cylinders to the consumers when it accepted security deposits totalling Rs. 1,59,77,515. A copy of this order has been produced as annexure P1 with the writ petition. Aggrieved by the order, the petitioner filed an appeal. Along with the appeal, the petitioner submitted an application with a prayer that the appeal be heard without insisting upon the deposit of the tax. The petitioner s application was rejected by the Joint Excise a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for hearing before the Bench yesterday. On behalf of the petitioner, it was urged that if the appellate authority considers the appeal without insisting on the deposit of tax, the petitioner shall not press for a decision on merits. The case was adjourned to enable Mr. Goyal, counsel for the respondents to obtain instructions. He has obtained the instructions. Mr. Goyal states that the case should be heard and decided on merits. We have, consequently, heard the counsel on the merits of the case. Both sides have referred to the provisions of the Act and even cited decisions. While we were dictating the order, Mr. Goyal submitted that the State cannot accept the petitioner s request for entertaining the appeal without deposit of tax as its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court in Aggarwal Brothers v. State of Haryana, Civil Appeal No. 78 of 1996* the transfer of right to use shuttering for consideration by builders was sale within the meaning of section 2(1) of the Haryana General Sales Tax Act, 1973. However, when a person goes to a library to borrow books, he gets a right to use the books. Normally, the member has to furnish some amount by way of security to the library. Despite that, the borrowing of books will not fall within the definition of sale as contemplated under the provisions of section 2(1)(iv). 9.. In the present case, we find that the cylinders are only a mode for carrying the gas. The consumer pays the security when he takes the cylinder. The amount of security is less than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was hiring the cylinder. Even the Assessing Authority has not found so. It is the admitted position that the petitioner is collecting only refundable security which has to be returned in full as and when the consumer returns the cylinder. The amount charged by way of security is not even alleged to be more than the cost price. There is no gain. No collection of money on which even some interest may be said to have accrued. Thus, the respondents can derive no advantage from the decision in the case of Industrial Oxygen Company Pvt. Ltd. [1992] 86 STC 539 (AP). 11. It was then contended that the petitioner having purchased cylinders on the strength of C forms, it should be presumed that it was selling the containers and not merely usi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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