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TMI Blog2004 (1) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... ting an aluminium wire around the crimped portion) is done by using a crimping machine. The name and address of the appellant and the description of the contents are printed on the polythene bag. 3.. Entry 22 of the Fifth Schedule to the Karnataka Sales Tax Act, 1957 ("the Act" for short) exempts from tax "eggs and meat including flesh of poultry except when sold in sealed containers". Correspondingly, entry 8(vii) of Part F of Second Schedule subjects "meat and dressed chicken sold in sealed containers" to tax under section 5(3)(a) of the Act, at nine per cent from June 1, 2003. 4.. Appellant contends that only where a container is hermetically sealed, that is, made airtight and watertight, the container can be said to be a sealed cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne bags closed by either stapling/crimping is covered under entry 8(vii) of Part F of Second Schedule as "sale of dressed chicken in sealed containers". The said ruling of the authority is challenged in this appeal. On the contentions urged, the question that arises for consideration is whether dressed chicken, when sold in a polythene bag which is closed by a staple or closed by crimping and twisting an aluminium wire around the crimp, is to be considered as sale in a sealed container. 6.. The term "sealed container" has been considered by the Supreme Court in Commissioner of Sales Tax, U.P. v. G.G. Industries [1968] 21 STC 63. The question that arose for consideration in that decision was whether sale of confectionery (chocolates, lolli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdbox the covering has to be torn. A sealed tin may or may not be hermetically sealed. Therefore, the fact that a sealed tin may be airtight and a sealed cardbox is never really airtight does not assist us in deciding the point .. It seems to us that this packet would fall within the expression 'sealed container' occurring in the notification. (emphasis supplied) 7. In Commissioner of Sales Tax v. National Chikki Mart [1977] 39 STC 447, the Bombay High Court following the decision in G.G. Industries [1968] 21 STC 63 held: "To determine whether a container is sealed or not, it is not relevant to consider as to whether to break the covering any instrument or knife is needed or whether it could be done with bare hands or fingers. What is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible to access the contents or remove the contents without breaking either the container or the fastening by which it is closed. But controversies arise as what is "closed" and what is "breaking". A container, to be "closed", need not be hermetically sealed. It need not be airtight or watertight. It is sufficient if the "closing" of the container prevents the contents being accessed or removed or substituted or reinserted without breaking the container or the fastening. "Breaking" the container or "breaking the fastening" does not necessarily mean cutting or breaking the container or the fastening to pieces. "Breaking" refers to parting, dividing, tearing, rupturing or severing, either wholly or partially, by applying a strain or force. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the manner in which appellant packs and markets the dressed chicken amounts to selling them in sealed containers. 10.. The appellant placed strong reliance on the decision of the Delhi High Court in Commissioner of Sales Tax, Delhi v. Pop Corn [1982] 49 STC 36, wherein the decision in G.G. Industries [1968] 21 STC 63 (SC) was distinguished. The Delhi High Court considered the question whether pop corn sold in loosely stapled polythene bags can be considered as sale in sealed containers. Distinguishing the decision in G.G. Industries [1968] 21 STC 63 (SC) the Delhi High Court observed thus: "In the present case, the finding of the Financial Commissioner is that the stapling was loose. A polythene bag containing pop corns loosely st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods in entry 22 of Fifth Schedule and entry 8(vii) of Part F of the Second Schedule, understood and interpreted in the light of the law laid down by the Supreme Court in G.G. Industries case [1968] 21 STC 63. We however, feel it necessary to digress and refer to the significant changes that have taken place in food processing and packaging, in the decades which have passed since the decision in G.G. Industries [1968] 21 STC 63 (SC) was rendered. With the advancement of science and technology and increased consumer awareness, there is a manifold increase in the use of ordinary non-hermetical sealed containers as also hermetically sealed containers, for packing cereals, foodstuff and flesh of poultry, etc. Foodgrains, vegetables, fruits, fles ..... X X X X Extracts X X X X X X X X Extracts X X X X
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