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TMI Blog2005 (9) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... officer, upon examination of the respective cases of the parties and the documents brought before him in the course of the assessment proceedings, recorded certain findings on the basis of which the said authority thought it proper to hold that in the transactions of sale of the goods there was an implied agreement of sale of the containers for which the petitioner-assessee should be made liable for payment of tax. The findings recorded by the assessing officer, on the basis of which the above conclusion was drawn, being relevant for the purpose of the present adjudication, the same may be conveniently extracted hereunder: 1. The price of one bag of such goods has been shown as the selling rate in the respective sale bills. 2.. The price per quintal or kilogram of such goods has not been mentioned in such sale bills or challans. 3.. The total sale price in each and every bill is found to have been worked out on the basis of the rate per bag and not as per quintal. 4.. The quantity of wheat products contained in each bag has been shown at 90 kg net as per the challan. The revisional authority, hearing the revision petitions filed by the petitioner-assessee agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner, could have been very well neutralised by the petitioner-assessee against his profits and the burden of proving that a sale transaction relating to containers had been entered into by and between the parties is on the Revenue, and not on the assessee. In the facts of the present case, the Tribunal has gone grossly wrong in holding that the required burden had been discharged by the Revenue so as to make the petitioner-assessee liable to tax on the basis of any deemed transaction of sale of containers. The argument advanced on behalf of the petitioner-assessee has met with strong resistance offered by Sri K. N. Choudhury, learned Additional Advocate-General, Assam. Sri Choudhury has contended that the challans/ sale bills brought on record in the course of the assessment proceedings clearly demonstrated that the sale price of the goods was fixed as per the weight of the bag containing the goods and that the price per quintal or kilogram was not mentioned in the challans. According to Sri Choudhury, the sale of the goods being on the basis of a bag/bags, it would be reasonable to infer that such sale price included the price of the bag. It is further argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplied agreement to sell the containers is a pure question of fact, the burden of proof of which fact lies on the Revenue and which question has to be answered by taking into account all relevant facts and circumstances of a given case. In Dhariwal Bottle Trading Company [1995] 99 STC 326, the Bombay High Court was considering a reference made to it where the question involved was whether the gunny bags in which the empty bottles were purchased by the assessee from unregistered dealers was the subjectmatter of a second sale to the distilleries for purposes of determination of the liability of the assessee to purchase tax on the first transaction vis-a-vis unregistered dealers. Relying upon the decision of the Supreme Court in Hyderabad Deccan Cigarette Factory [1966] 17 STC 624, the Bombay High Court proceeded on the basis that in the aforesaid decision, the apex court had laid down the law that an implied sale of containers cannot be inferred except in cases where the special facts and circumstances of the case would justify such an inference. In answering the reference, the Bombay High Court took the view that certain goods have to be packed in containers of one kind or the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly because the sale transaction of the goods does not reflect a separate price for the containers and the transaction is apparently a sale of only the goods included in a container, it would not be correct to rule out an implied sale of the container also. The inference of an implied sale is a question that has to be decided by having regard to the intention of the parties and in drawing such an inference, the intention of the parties, the value of the material used, the convenience of the container for the purpose of handling, carriage, etc., would all be relevant factors and no inference of an implied sale should be made by having regard to one single factor. In the present case, the container for which the petitionerassessee has been made liable to tax is gunny bags. The transactions of sale of the goods were on the basis of the net weight without taking the weight of the container as has been found by the revisional authority. The particular container used in the transaction of the sale of the goods, i.e., gunny bag was again found by the learned revisional authority to be the cheapest and most convenient mode of packing and transporting the goods. In such circumstances, the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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