9911796707
TMI Blog2005 (12) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... e refunded. The brief facts of the case are that the dealer/opposite party (hereinafter referred to as the dealer ) was engaged in the business of country liquor and Indian-made foreign liquor. In the assessment order, it is mentioned that in the assessment year 1986-87 as per the letter dated March 29, 1986 of the Commissioner of Excise, U.P., the dealer was permitted to charge the price towards bottle in the case of 750 ml bottle at Rs. 2.30, 500 ml bottles at Rs. 2.20 and 250 ml bottle at Rs. 2.10 from the retail vendor and in case of return of bottle, a sum of Rs. 1.45 was returnable in the case of 750 ml bottle, at Rs. 1.35 in the case of 500 ml bottle, in the case of 250 ml bottles at Rs. 1.25. For the assessment year 1985-86, tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heard learned Standing Counsel. No one appeared on behalf of the dealer. Learned Standing Counsel submitted that the first appellate authority and the Tribunal have erred in holding that the amount charged towards bottle was not liable to tax because the amount has been received towards the bailment and not as a sale consideration. He submitted that in the present case, Excise Commissioner had permitted the supplier to charge price of bottle and on the return of bottle to refund certain amount. He submitted that in the present case, the amount charged was not towards the security but as a sale consideration of bottle. He submitted that on the return of bottle, the entire price charged towards bottle was not returnable and only part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tle was sold against the sale consideration, therefore, there was no question of providing bottle on bailment to the retail vendor. As per the definition of turnover under section 2(h), price of bottle is liable to be included in the turnover of liquor within the meaning of any sum charged for anything done by the dealer in respect of the goods at the time or before the delivery and liable to tax accordingly. In the case of United Breweries Ltd. v. State of Andhra Pradesh [1997] 105 STC 177 (SC) under the terms and conditions, bottle as a returnable, security was charged with the view to get the bottle returned and in case of non-return of the bottle as per terms and conditions, security was liable to be forfeited. Assessing authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ottles. In our view, the deposit amount which was liable to be forfeited on failure of the return of bottles was in the nature of liquidated damages recoverable by the supplier under section 74 of the Contract Act. An overall view has to be taken of the dealings and transactions between the manufacturer of the beer, its customers and the consumers. The intention of UB, does not appear to have been to sell the beer bottles. Nor was there any intention of the retailers to sell the bottles to the consumers. On the contrary, by the terms and conditions of the agreement UB was trying to ensure that the bottles in which the beer was supplied to the consumers through their customers were brought back to it so that they could be used again for fres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax on the following reasons: Now, there is nothing on record which indicates that the terms under which the deposits would be repaid were communicated to the assessee's customers. There is no suggestion that there was an oral communication of such terms to the customers or that there was any trade usage in this behalf. It is difficult to visualise a bailment the terms whereof are not made known to the bailee. The forfeiture of amounts in the assessee's 'Deposit on Bottles' account does not appear to bear out the assessee's case that the empties were returnable at any time. This must also be taken into account that the customers were required to deposit for the beer bottles a rate which was exactly equal to the cost o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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