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TMI Blog2008 (4) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... ts explanation with regard to the five points mentioned in the notice. This revision is confined only to the issue raised in point No. 5 of the show-cause notice. The dealer was called upon to submit his explanation as to why tax be not levied on the price of the bottles in which the liquor had been sold, amounting to Rs. 91,19,705.20. The dealer submitted his reply alleging that it was not involved in purchase and sale of bottles. The bottle had been used only for the purpose of transportation of liquor and as an economical means. It further stated that it had charged suitable charges from its purchaser at the rate specified by the Excise Department and such bottling charges included the price of the P.P. caps, seal, label and bottling. The assessing authority did not accept the explanation of the dealer and recorded a finding that even though the dealer could not have charged anything over and above the price fixed by the Excise Department for the bottling charges and such bottling charges mainly comprised of the price of the bottles and only negligible amount covered the price of the cap, seal and label. The assessing authority thus treated the amount determined by the Excise De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide accordingly. The appeal is allowed. The matter is remitted to the High Court for its consideration afresh. No costs." I have heard Sri B.K. Pandey, learned standing counsel on behalf of the Commissioner of Trade Tax and Sri Bharat Ji Agrawal, learned senior counsel assisted by Sri Piyush Agrawal, advocate, on behalf of the dealer. The following questions of law have been sought to be raised in this revision: "(i) Whether the Tribunal was legally justified to knock off the tax levied on bottling charges by including it in the taxable turnover without considering the entire incriminating material and evidence available on record? (ii) Whether the Tribunal was legally justified to accept the accounts of the assessee without considering the incriminating evidences available on record?" Pursuant to the order of the apex court original record of assessment was also summoned, which produced by Sri Pandey, learned standing counsel. It may be noted at the outset that the honourable apex court while remitting the matter for fresh consideration had restricted the scope of reconsideration only on the basis of the material available on record. Therefore this court is not in a po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a deliverable form. There exists a serious dispute as to whether for the purpose of levying sales tax, a part of the commodity which is sold as a composite whole would come within the purview of the Act when sale of two different commodities can be bifurcated for levy of tax. Containers of the principal commodity which is the subject-matter of the contract of sale may have to be taken into consideration for the purpose of arriving at the total turnover, but even for that purpose there has to be an element of ad idem of mind between the purchaser and seller. If, by reason of express contract or implied contract, the containers are also sold, indisputably the same would be exigible to tax, as has been held in Commissioner of Taxes, Assam v. Prabhat Marketing Co. Ltd., Gauhati [1967] 19 STC 84 (SC); AIR 1967 SC 602, but it is difficult to accept the contention of Mr. Dwivedi that even in absence of such a contract, sales tax would be leviable. Reliance has been placed by Mr. Dwivedi on Jamana Flour & Oil Mills (P.) Ltd. v. State of Bihar [1987] 65 STC 462 (SC); [1987] 3 SCC 404, wherein this court was not dealing with a situation of the present nature. It was held: '3. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter from another angle. A tax may be leviable at different rates. Definition of 'turnover' having undergone an amendment and being expansive in nature, whether would it be permissible to segregate it to make different commodities for the purpose of imposition of tax at a higher rate, is a question which would, in our opinion, merit consideration. We are not oblivious of the fact that if the sale is in relation to two different commodities, it may be permissible to levy tax at different rates, but not when the definition of 'turnover' includes a wide range of subjects including the package. Only for the purpose, the concept of implied contract of sale would assume significance." Now in the light of the observations contained as above, I proceed to deal with the respective arguments made at the Bar. Sri Pandey has strongly relied upon the notification or the circular issued by the Excise Commissioner determining the price which was to be charged by the dealer on the outer-limit, which was different for different sizes of bottles, i.e., full, half and quarter bottles. According to it for the relevant assessment year 1989-90 for the dealer in question, i.e., Co-operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond part of the Explanation, it would form part of the turnover even if charged separately. He has further submitted that the rate determined by the excise authorities, was not only for the price of the bottle but in addition to the price of the bottle it included the expenditure incurred under various other heads like P.P. corks, seal, label, the bottling charges and the labour incurred therein. According to him, the price of the bottle was never charged separately. There was no way that the turnover of the sale of bottle could be determined so as to determine the tax liability thereon. Sri Agrawal has relied upon the following decisions: (1) Commissioner of Sales Tax, M.P. v. Byramshaw K. Illava & Sons reported in [1980] 45 STC 249 (MP). (2) Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh reported in [1978] 41 STC 147 (All); [1977] UPTC 81. Having considered the submissions made at the Bar, in view of the discussion made hereinafter, it would be difficult to determine the price of the bottle. Until and unless price of the bottle is determined, tax could not be leviable merely on assumption and approximation. Even otherwise according to the definition of the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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