*1* kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SALES TAX REFERENCE NO.4 OF 2001. IN REFERENCE APPLICATION NO.36 OF 1997. The Commissioner of Sales Tax, Maharashtra State, Mumbai. ..Applicant -Versus- M/s Indian Dyestuff and Chemical Manufacturing Company. ..Respondents ........... Mr.V.A.Sonpal, “A” Panel Counsel for the Applicant. Mr.C.B.Thakar, Amicus Curiae, for the Respondents. .......... CORAM : V.C.DAGA & K.K.TATED, JJ. Closed for orders on 04th March, 2010. Pronounced on : 18th March, 2010. JUDGMENT (Per K.K.Tated, J): 1 Heard the learned counsel for the rival parties. 2 By this Reference under Section 61(1) of the Bombay Sales Tax Act, 1959 (herein after to be referred as “the BST Act, 1959”) made at the instance of the Applicant-Additional Commissioner of Sales Tax, Maharashtra State, Mumbai; the Maharashtra Sales Tax Tribunal, Mumbai vide its judgment dated 29.07.2000 has referred two questions of law for the opinion of this Court. *2* 3 The material facts giving rise to this reference briefly stated as follows:- The Respondent-Dealer is manufacturer of dyes and chemicals and holding authorization for the period 01.01.1988 to 31.03.1989. During that period, the Respondents purchased certain packing material against declaration in Form No.14 and used the same for packing of the goods manufactured by them. While making the assessment, the Assessing Authority held that there was contravention of Form No.14, therefore, purchases tax was leviable under Section 14 of the BST Act, 1959, accordingly, assessment was done vide the assessment order dated 31.03.1992. 4 Being aggrieved by the above assessment order dated 31.03.1992 passed by the Sales Tax Officer, Kalyan for the period 01.01.1988 to 31.03.1989, the Respondents had preferred an appeal on 07.05.1992 under Section 55(6)(a) & (b) of the BST Act, 1959 before the Assistant Commissioner of Sales Tax, Kalyan without any success. The said appeal came to be dismissed by the Assistant Commissioner of Sales Tax vide its order dated 17.03.1994. 5 Against the aforesaid order dated 17.03.1994, the Respondents preferred Second Appeal No.457/1994 before the Maharashtra Sales Tax Tribunal, Mumbai. In the said Second *3* Appeal, the Respondents contended that the Respondents made purchases of packing materials, namely; plastic drums and plastic bags on Form No.14 and used the same in packing the chemicals manufactured, supplied and exported by them. The said packing material along with packed chemical were also exported out of India within the stipulated time. It was also contended that since there was implied sale of packing material along with chemical, the Assessing Authority as well as the first Appellate Authority committed an error in levying and confirming the levy of purchases tax on the alleged violation of Form No.14. 6 The Tribunal vide its judgment dated 17.12.1996 partly allowed the Second Appeal and directed the Assessing Authority to classify the purchases of packing material namely plastic drums and plastic bags made by the Respondents prior to 11.08.1988 and subsequent to 11.08.1988. The Tribunal held that the purchases tax under Section 14 of the BST Act, 1959 would not be leviable in respect of the purchases made before 11.08.1988, however, such purchases tax shall be leviable on the purchases made on or after 11.08.1988 and consequentially additional tax if any would also be leviable. The Tribunal further directed the Assessing Authority to assess the tax accordingly and to pass the appropriate order including consequential order in accordance with law. *4* 7 Being aggrieved by the aforesaid order dated 17.12.1996, the present Applicant filed the Reference Application No.36/1997 under Section 61(1) of the BST Act, 1959 with a request to refer questions of law to this High Court for opinion. The Tribunal by its judgment dated 29.07.2000 referred questions of law for the opinion of this Court, which read as under:- “(i) Whether, on the facts and in the circumstances of the case and especially in view of the Tribunal’s finding that the said packing material namely plastic drums and plastic bags have been used by the appellant/dealer for convenience of transport and the quantity of transported goods was not dependent on the packing; the Tribunal was not justified in law in not following the ratio of the Bombay High Court judgment in the case of Dhariwal Bottle Trading Company (99 STC 326)? (ii) Whether, on the facts and in the circumstances of the case, and in view of the fact that the appellant/dealer did not produce any contract for sale/purchases of, not only the packing material, but also of the packed contents; the Tribunal was justified in law in holding that no purchases tax under Section 14 would be leviable in respect of the purchases made before 11.08.1988 on the ground that there is no contravention of recitals of declaration in form 14 as there was an implied sale of the packing material namely, plastic drums and plastic bags, by the appellant to his vendees?” 8 It is obvious from the above questions that the controversy involved in this reference is in narrow campus and determination of the same depends on construction of Section 15(A) of the BST Act, 1959. For the relevant period i.e. 01.07.1981 to 31.03.1989, Section 15(A) of the BST Act, 1959 reads thus:- *5* “15A. Rate of tax on packing materials: Where any goods are sold or purchased and such goods are packed in any materials, the tax shall be leviable on the sales or purchases of such packing materials (whether such materials are separately charged for or not) at the same rate of tax (if any) as is applicable to the sales or purchases, as the case may be, of the goods themselves.” 9 Though the Respondents were duly served. However, they failed to file their appearance in the present matter. Therefore, this Court appointed Mr.C.B.Thakar as Amicus Curiae. 10 Mr.Sonpal, learned “A” Panel Counsel appearing for the Applicant submitted that the Tribunal erred in coming to the conclusion that the Respondents complied the terms and conditions of Form no.14 as per law and therefore, they are not liable to pay any purchase tax on the packing material. He submitted that the Tribunal further erred in holding that the purchases tax under Section 14 of the BST Act, 1959 would not be leviable in respect of the purchases made before 11.08.1988 and the same would be leviable on the purchases made on or after 11.08.1988 only. He further submitted that the plastic bags and plastic drums were purchased by the Respondents and the same were used in packing manufactured goods and packing material along with chemicals were exported out of India within stipulated time. He submitted that the Tribunal, while coming to the conclusion that there was *6* implied sale of packing materials used, has heavily relied on the principles laid down by the Apex Court in case of Raj Sheel & others Vs. State of Andhra Pradesh & others reported in 74 STC 379 (SC). In his submission, in the case of Raj Sheel, it is ruled that the transaction for sale of packing material is always an independent transaction which will depend on several factors, some of them are (a) the packing material is a commodity having its own identity and is separately classified, (b) there is no change, chemical or physical, in the packing either at the time of packing or at the time of using the contents, (c) the packing is capable of being reused after the contents have been consumed, (d) the packing is used for convenience of transport and the quantity of the goods as such is not dependent on packing, (e) the mere fact that the consideration for the packing is merged with the consideration for the product would not make the sale of packing an integrated part of the sale of the product. According to Mr.Sonpal, reliance placed by the Tribunal on the case of Raj Sheel is misplaced. 11 Mr.Sonpal submitted that the question whether there is sale of packing material or not, is a question of fact and that has to be decided on actual terms of the contract and intention of the parties. He submitted that the fact that the packing is of insignificant value in connection with the value of contents, may *7* imply that there was no intention of sale of packing material but where packing material is of significant value, it may imply an intention to sell the packing material. He further submitted that when packing material is an independent commodity and the packing material as well as the contents are sold independently, the packing material is liable to be taxed on its own footings. 12 Mr.Sonpal further submitted that in the present case the Respondents failed to disclose any invoice, bill of entry or any other document to show that they have also sold the packing material along with chemicals. He submitted that it is crystal clear from the documents produced by the Respondents on record that the Respondents sold the chemicals without disclosing the value of packing material and therefore, the Respondents are liable to pay the purchase tax under Section 14 of the BST Act, 1959 for contravention of the terms and conditions of the Form No.14. 13 Mr.Sonpal further submitted that plain reading of Section 15(A) clearly shows that the sales tax is leviable on the sale or purchase of packing material. In the present case since the Respondents failed to disclose the value of packing material in the invoices, they are liable to pay purchase tax. He further submitted *8* that there was no implied sale of packing material namely plastic bags and plastic drums, therefore, there was violation of Form No. 14. In support of this submission he relied on the judgment in case of Dhariwal Bottle Trading Company Vs. State of Maharashtra reported in 99 STC 326 (Bom.). He submitted that in case of Dhariwal Bottle Trading Company (supra), this Court held that an implied sale of packing material cannot be inferred in all cases but only in cases where the special facts and circumstances justify such an inference. It is further observed that the packing material is used merely as a cheap or convenient mode of transport and no sale of the packing material would be involved in such cases. It is further observed that an implied sale can be inferred only where the container is of such an exceptional type and of unusually high value which, in the ordinary course of business, is not used for packing the goods in question. 14 Mr.Sonpal further submitted that in the present case the value of packing material is insignificant because it comes near about 4% of the total export. Not only that but no where it is stated in the invoices or in any other document that the Respondents are charging separately for packing material. He placed reliance on the judgment in case of M/s Associated Cement Company Ltd. Vs. The State of Maharashtra passed by the Maharashtra Sales Tax Tribunal, *9* Mumbai in Appeal No.170/1997 dated 11.10.2002 wherein it is observed that there should be sufficient material on record to show that the Company has traded in packing material as a separate trading activity as revealed from (i) registration certificate and (ii) trial balance showing separate account for sale of packing material and for sale of goods. 15 Mr.Sonpal mainly relied on the paragraphs Nos.36 and 37 of the said judgment in support of his above submission, which read thus:- “36. We have carefully gone through the various judicial pronouncements made from time to time on this identical issue of implied sale of packing material including the judgments referred to above. The following principles are emerged from these various decisions on the point:- 1. By and large there can be said to be mainly five ways in which a sale would take place:- (i) The parties may agree for separate consideration for the goods packed and the container thereof. (ii) A composite consideration may be agreed upon as a single sale transaction for both the contents and the container. (iii) The product may be sold with the transfer of the container without any consideration thereof. (iv) The buyer may agree to give deposit with the seller who may forfeit the deposit upon his not returning the container within the agreed period. (v) The seller may pay an agreed amount on return of the container and treat the transaction of resale of packing material. 2. The statutory Act may provide expressly either by definition of sale or turnover to include the *10* cost of packing material like section 6-C of the Andhra Pradesh Sales Tax Law referred to above, or 3. By a separate provision the statute may provide for a deemed sale of packing material along with the goods. The transaction of sale of packing material along with the goods. In such case the transaction of sale of packing material along with the goods can be inferred. 4. There may be separate or independent sale of packing material which can be inferred from the intention of the parties or from the terms of the agreement. 5. Whether there was an agreement to sell packing material independently or not is always a pure question of fact and it cannot be decided on fiction or surmise or by applying a straight jacket formula. 6. Whenever the department tries to levy tax on the packing material on the assumption that the same was sold along with the goods packed, the burden is on the department to prove that the turnover in question was liable to tax, i.e. The packing material was sold along with the goods and liable to the same rate of tax. 7. Each case has to be decided on its own facts. Every case, therefore, calls for factual investigation into the nature and ingredients of the transaction for finding out the real intention of the parties. 8. Whether a transaction for sale of packing material is an independent transaction will depend on several factors including:- (i) The fact that packing material is of insignificant value in relation to the value of the contents may imply that there was *11* no intention to sell the packing material; (ii) The packing material is a commodity having its own identity and is separately classified in the Schedule; (iii) There is no change, chemical or physical, in the packing either at the time of packing or at the time of using the content; (iv) The packing is capable of being reused after the contents have been consumed; (v) The packing is used for convenience of transport and the quantity of the goods as such is not dependent on packing; (vi) The mere fact that the consideration for the packing is merged with the consideration for the product would not make the sale of packing an integrated part of the sale of the product; (vii) Where the price of the goods sold remained the same all throughout without having any bearing as to whether the goods sold were packed or loose. There is no separate sale of packing material; (viii) If the packing material was of routine type and not complicated and where the cost thereof was insignificant it can be inferred that there was no sale of packing material. (ix) Where the packing material is used as a cheap convenient mode of transport it can be inferred that there is no separate sale of packing material. (x) Where relative value of the packing material as compared to the value of the material packed is about nine to ten per cent or above it can be said that it is of significant nature. 37. Turning to the facts of the present case, after applying the aforesaid principles, mainly the following circumstances are available for us to draw the inference as regards implied sale:- 1. There is sufficient material on record to show that the company has traded in packing material as a separate trading activity as revealed from:- (i) Registration Certificate; (ii) Trial balance showing separate account for sale of packing material and for sale of cement. *12* (iii) One of the object of the company as reflected vide sub-clause (3) of clause 3 in memorandum of association. (iv) Packing monthly price circulars issued by the head. 2. In the sale bills issued packing charges are separately shown. 3. Prices of HDPE bags and cement are separately fixed depending upon demand and supply position during particular period and the competitors price in the region. 4. Type of packing material is used for which the stockists/purchasers have preference, particularly in respect of Municipality, Semi Government when the orders are placed, the description of the packing material in which cement should be supplied is specifically mentioned. 5. The percentage of cost of packing with the sale price is about 11 per cent. 6. The sale price of cement is increased or reduced, the price of packing material remain constant. 7. The packing material i.e. HDPE bags to be separately identified and rate of tax of the cement and rate of tax on HDPE bags is also separately classified in the Schedule. 8. There is no chemical or physical change when the HDPE bags are used for packing the cement though the bags bulge when the cement is filled, after removing the cement it comes to its original shape. Further it may be noted that no stitching is done by the appellant as the bags are purchased duly stitched on all four sides with a flap for filling the cement which closes automatically as soon as the bag is filled to its capacity. It has *13* also been pointed out that the appellant had purchased the printed HDPE bags and the same are used as they are for packing the cement. Thus, there is no chemical or physical change in the packing material of HDPE bags. 9. There is also no dispute that the entire transaction in respect of which the resale has been claimed, the appellant has used HDPE bags. The HDPE bags after removing the cement can be used for any other purpose. Not only that, even these HDPE bags could be reused for packing of the cement, if these bags are properly handled and not allowed to be damaged. It is contended by Shri Ghanekar, learned Sales Tax Practitioner, for the appellant, that even the Central Government has recognized the use of serviceable second hand D.W. heavy cases jute bags for packing cement. In support, he has brought our attention to the reference of Central Government communication made in that behalf in the case of State of Tamil Nadu vs. Cement Distributors P.Ltd. (31 STC 309 (SC)). It appears that while dealing with whether the supplies of gunny bags amount to sales, in the facts and circumstances of the said case, their Lordships have referred to telegram dated 17.02.1961 of the Central Government. It appears that by said telegram the Central Government informed all the State Governments that having regard to the prevailing jute bags price, the Government was pleased to fix under clause 6(4) of the Cement Control Order, 1958, the charges for packing cement in D.W. As well as serviceable second hand D.W. Heavy cases jute bags at Rs.17/- per ton for the period effective from the 20th *14* February to the 31st March, 1961. Thus, the reuse of high quality of such bags has not been ruled out. In any case, the HDPE bags cannot be equated with ordinary gunny bags and their reuse even for packing the cement is quite possible and probable in greater degree. In this context, reliance has been placed by Shri. Ghanekar, learned Sales Tax Practitioner for the appellant, on unreported judgment of the Appellate Tribunal of Andhra Pradesh in the case of Priyadarshini Cements Ltd., Hyderabad vs. State of Andhra Pradesh (T.A. No.144 of 1995 dated 29.09.1995) which has been confirmed by the Supreme Court. Shri. Samlo, learned advocate for the revenue, relying on decision in the case of Kunhay Yammed vs. State of Kerala (2000) 6 Supreme Court Cases, 359) urged that dismissing the Special Leave Petition assigning without any reason is not a declaration of law by the Supreme Court under Article 141 of the Constitution. Shri Ghanekar, learned Sales Tax Practitioner for the appellant, has also fairly conceded the said position but has rightly contended that such decision which has been confirmed up to the Supreme Court certainly carries weight for pursuing the point involved in such decision. Shri. Samlo, learned advocate for the revenue, while disputing the possibility of reuse of the bags has heavily placed reliance on decision in the case of appellant itself i.e. Associated Cement Companies Ltd. vs. Commissioner of Commercial Tax (90 STC 424, (W.B.T.T.)). We will deal with this judgment in detail in later part of this judgment while dealing with the claim of resale. However, at this *15* stage it is suffice to say that though it was the case of the appellant company itself the resale of the polythene bags were claimed therein and the reuse of the same was held impossible. It is needless to say that, as pointed out above, HDPE bags cannot be equated with ordinary gunny bags. 10. There cannot be also a dispute that cement is packed in HDPE bags as convenient mode of transport. It is a common knowledge that the cement can be packed in gunny bags, polythene bags or HDPE bags to save it from being damaged by moisture or water. But the packing of the cement made in HDPE bags shows that there is a conscious choice of packing.” 16 Mr.Sonpal also relied on the judgment in the matter of M/s T.V.Sundram Iyengar & Sons vs. The State of Madras reported in (1975) 3 Supreme Court Cases 424. He submitted that in this case the question arose before the Apex Court as to whether the Company making supplies of the bus bodies by constructing and fitting them to chassis provided by the customers, is liable to pay sales tax. The Apex Court held that the transaction relating to the construction of the bus bodies by the Assessee on chassis supplied by the customers constitutes a contract of sale of the goods. 17 Mr.Sonpal also relied on the judgment in case of Vasavadatta Cements vs. State of Karnataka and another reported in AIR 1996 SC 1035, wherein after considering the section 5 of the *16* Karnataka Sales Tax Act, 1957, the Apex Court remanded the matter to the Lower Authority with direction to decide on facts whether or not the appellant in that case was liable for sales tax under Section 5(3)(d) of the Karnataka Sales Tax Act, 1957 where he had used the gunny bags/ plastic bags for packing of the cement manufactured and supplied, based on the terms of contract and intention of the parties to the transaction. 18 Mr.Sonpal further relied on the judgment of the Apex Court in the matter of M/s Co-operative Company Ltd. vs. Commissioner of Trade Tax, U.P. reported in 2007 (4) SCC 480. In this case the Apex Court held that the 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 found to be sold then indisputably the same would be eligible to tax. 19 On the above mentioned submissions, the learned counsel for the Applicant submitted that the Tribunal failed to consider and rely on the judgment in the matter of Dhariwal Bottle Trading Company (supra) at the time of deciding the appeal. *17* 20 On the other hand, Mr.Thakar, Amicus Curiae on behalf of the Respondents, submitted that in the present case the Tribunal has rightly relied on the judgment in the matter of Raj Sheel (supra) and rightly held that the Respondents were not