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TMI Blog2021 (8) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale price of said containers was not to be found in the invoices. Consequently, there was no question of presuming the sale of the tin containers and requiring the Petitioner to be taxed thereon. The tin containers are exempt from payment of sales tax in terms of the 4th proviso to Section 5 (1) of the OST Act - the 4th proviso to Section 5 (1) of the OST Act is applicable to the sale of tin in which exempt oil was sold and the containers were not separately sold - nil rate of tax would apply to the sale of tin containers. Revision petition allowed. - STREV No. 23 of 2007 - - - Dated:- 18-8-2021 - THE CHIEF JUSTICE DR. S. MURALIDHAR AND JUSTICE B.P. ROUTRAY For the Petitioner : Mr. Jagabandhu Sahoo, Sr Advocate Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Petitioner had effected purchases of 20823 numbers of empty tins from open market and used the tins as containers while selling tax exempted oil. However, since the Assessee did not separately disclose the sale price of tin containers and did not pay the tax thereon, the AO, relying on the decisions of the Supreme Court in Raj Sheel v. State of Andhra Pradesh (1989) 74 STC 379 and Commissioner of Sales Tax v. Prabhat Marketing Co. Ltd. (1967) 19 STC 84, held that the Petitioner was liable to be pay tax @ 12% on the sale price of tin containers amounting to ₹ 2,49,876/- @ ₹ 12/- per tin. 5. The Assessee s appeal was allowed by the ACST relying inter alia on the decisions of the Universal Agencies v. State of Tamil Nadu ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that the dealer should have shown the sale price of such container separately and should have also paid the tax. However, the fact remains that the tins in which the exempted oil were sold was not shown separately. The AO himself noted that the sale price of said containers was not to be found in the invoices. Consequently, there was no question of presuming the sale of the tin containers and requiring the Petitioner to be taxed thereon. 11. The decision in Raj Sheel (supra) has been reiterated by the Supreme Court in Premier Breweries (supra) both of which support the case of the Petitioner. These decisions were wrongly distinguished by the Tribunal. Here the 4th proviso to Section 5 (1) of the OST Act squarely applied. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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