LexCOMMISSIONER OF TAXES ASSAM, SHILLONG versus PRABHAT MARKETING CO. LTD., GAUHATI
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COMMISSIONER OF TAXES ASSAM, SlULLONG v. PRABHAT MARKETING CO. LTD., GAUHATI October 27, 1966 B [J. C. SHAH, V. RAMASWAMI AND V. BHARGAVA, JJ.] D JI Assam Sales Tax Act (Act 17 of 1941)-Packing materials of exempt· ed goods when liable to sales tax. The respondent was a registered dealer under the Assam Salea Tax Act, 1947. The Sales-tax Officer assessed the respondent to Sales-tax in respect of the containers of hydrogenated oil and other exempted goods. Appeals to the Assistant Commissioner of Taxes failed as also second ap- peals to the Assam Board of Revenue. In reference the High Court held that the value of the containers was not assessable to sales tax "unless separate _Price has been charged for the containers." This finding was based on the view that there was no evidence to show that actually separate price was paid for the containers and hence there was no sale and there could not be any tax 0n the containers. In appeal to this Court by the Commill· sioner of Taxes it was urged that the parties may have intended in the citeumstances to sell the hydrogenated oil apart from the containers, and the mere fact that the price of the containers was not separately fixed would make no difference. HELD : The question as to whether there is an agreome.nt to sell pack- ing material is a pure question of fact depending upon the circumstancea found in each case. The High Court was in error when it answered the question of law referred to it without addressing itself to the question whether there was .an express or implied agreement for the sale of the con- tainers of hydrogenated oil in the present case. [963 H] Hyderabad Deccan Cirgrette Factory v. State of Andhra Pradesh, 17 S.T.C. 624, relied on. CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 199 and 200 of 1966. Appeals by special leave from the judgment and order dated May 20, 1964 of the Assam and- Nagaland High Court in Sales Tax Reference No. 1 of 1963. Naunit Lal, for the appellant (in both the appeals). G B. P. Maheshwari, for the respondent (in both the appeals). H The Judgment of the Court was delivered by Ramaswami, J. These appeals are brought, by special leave, from the judgment of the High Court of Assam and Nagaland dated May 20, 1964 in Sales Tax Reference No. 1 of 1963. The respondent is a registered dealer under the Assam Sales Tax Act (Act 17 of 1947). For the two periods ending September 30, 1959 and September 30, 1960, the Sales Tax Officer assessed the 962 SUPllBME COURT RBPORTS [1967) 1 S.C.ll. respondent to sales tax holding that hydrogenated oil was exempt from sales tax but the value of the containers should be assessed at Re. 1/- for each container of hydrogenated oil and at 2 annas for salt bag and a small mustard oil tin which are other exempted goods for the period ending September 30, 1959. For the other period ending September 30, 1960, the value of the containers of the exempted goods was estimated at Rs. 21,500/-. The res- pondent preferred appeals to the Assistant Commissioner of Taxes. but the appeals were dismissed. The respondent preferred second appeals before the Assam Board of Revenue which by its order dated June 17, 1963 also dismissed the appeals. The respondent thereafter filed an application under s. 32 of the Assam Sales Tax Act, 1947 for reference of the following two questions of law to the High Court : "(I) Whether deli\·ery of goods made to the Assam Rifles and NEFA, at Rowriah Air Port for consumption outside the State of Assam, constitutes a sale liable to Sales Tax under the Act ? (2) Whether the value uf the containers of hydrogenated oil is <L'sessable to Sales Tax under the Act though the oil itself is not taxable under it ?" By its judgment dated May 20, 1964 the High Court answered the first question against the assessee. With regard to the second question, the High Court held that the value of the containers was not assessable to sales-tax "unless separate price has been charged for the containers". The High Court took the view that there was no evidence to show that actually separate price was paid for the containers and hence there was no sale and there could not be any tax on the containers. The High Court accordingly answered the second question in favour of the assessee. The question presented for determination in these appeals is whether the value of containers of hydrogenated oil is assessable to sales-tax under the As
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