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1997 (12) TMI 569

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....nt for the year 1982-83. Before the assessing officer the assessee's case was that the cardboard cartons will have to be taxed at the rate of 8 per cent under entry 97 of the First Schedule of the Kerala General Sales Tax Act, 1963 and not at the rate of 50 per cent applicable to sale of liquor. The appellant's case was that it had charged its customers separately for the liquor and the cartons. There was no reason to include the value of the cartons in the value of the liquor for the purpose of levy of tax. Initially, the assessee's stand was accepted by the Assistant Commissioner of Sales Tax and an assessment order was passed accordingly. 2.. Later on the Deputy Commissioner, Palghat, thought that an error has been committed in the assessment order and in exercise of his revisional power under section 35 of the Act he set aside the assessment order. The Deputy Commissioner was of the view that the assessing authority had erroneously levied tax at the rate of 8 per cent on packing material, viz., cardboard cartons. As per section 5(5) of the Kerala General Sales Tax Act, 1963 where goods sold were contained in containers or were packed in any packing material, the rate of tax an....

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....te of tax and the point of levy applicable to such containers or packing materials, as the case may be, shall, whether the price of the containers or the packing materials is charged separately or not be the same as those applicable to goods contained or packed, and in determining turnover of the goods, the turnover in respect of the containers or packing materials shall be included therein. 5(6) Where the sale or purchases of goods contained in any containers or packed in any packing materials is exempt from tax, then, the sale or purchase of such containers or packing materials shall also be exempt from tax." 6.. The language of sub-sections (5) and (6) of section 5 is clear and unambiguous. These two sub-sections deal with the method of valuation of packed goods and the rate of tax payable thereon. The rules laid down are: (1) Where goods sold are contained in a container or packed in any packing material, the rate of tax payable on the containers shall be the same as that applicable to the goods contained or packed. (2) This will be the position even if price of the containers or packing materials is charged separately. (3) The turnover of the goods will include the turnov....

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....sold, provisions of sub-sections (5) and (6) will apply. There will be one rate of tax and one point of levy for such packed goods. This rule will apply "whether the price of the containers or the packing is charged separately or not". In view of this, there is no scope for any assumption that sub-section (5) was based on an inarticulate premise that the provisions of that sub-section will not apply if the goods and the containers are sold and charged separately. 10.. Mr. Sunil Gupta, on behalf of the appellant referred us to two decisions of this Court in support of his contention that if the containers were shown to have been sold separately, then the provisions of sub-section (5) of section 5 will not apply. The first case relied upon for this proposition is the judgment of this Court in the case of Raj Sheel v. State of Andhra Pradesh [1989] 74 STC 379; (1989) 3 SCC 262 where the question of validity of section 6-C of the Andhra Pradesh General Sales Tax Act, 1957 was examined by this Court. Section 6-C of the Act provided: "6-C. Levy of tax on packing material.-Notwithstanding anything in sections 5 and 6-A, where the goods packed in any materials are sold or purchased, the ....

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.... used in a statute for very many purposes. It was observed by Lord Radcliffe in St. Aubyn v. Attorney-General [1952] AC 15: "The word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible." 13.. Pathak, C.J., was of the view that in section 6-C the deeming clause should be given a restricted meaning and at best, should be regarded as a provision by way of clarification of an existing legal situation. In other words, the deeming clause merely restated what was otherwise obvious.   14.. Pathak, C.J., by giving a restricted meaning to the deeming clause ruled out the possibility of taxing the packing material or the containers in cases where only the goods were sold but the packing material or the containers were not actually sold. 15.. This observation of Pathak, C.J., does not help Mr.....

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....lar. The pro- visions of the Karnataka General Sales Tax Act were as under: "5. Levy of tax on sale or purchase of goods.-(1)............. (3D) Notwithstanding anything contained in this Act, where goods sold or purchased are contained in containers or are packed in any packing materials liable to tax under this Act, the rate of tax and the point of levy applicable to turnover of such containers or packing materials as the case may be, shall, whether the containers or the packing materials have already been subjected to tax under this Act or not or whether the price of the containers or of the packing materials is charged separately or not, be the same as those applicable to goods contained or packed: Provided that no tax under this sub-section shall be leviable if the sale or purchase of goods contained in such containers or packed in such packing materials is exempt from tax under this Act." 19.. The Karnataka Sales Tax Act takes notice of the fact that where the goods are sold in containers or packing materials such packing materials may have already been subjected to tax under the Act. But the provisions of section 5(3-D) will apply even (1) when the containers or packing ....

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....separately. We are also of the view that the mere fact that the containers and the goods were sold separately or charged separately will not make any difference in the matter of computation of the turnover of the goods and determination of tax or the rate of tax and the point at which the tax will be levied under section 5(5) of the Kerala Act. 21.. Section 5(3-D) of the Karnataka Act, if anything, is more specific than section 5(5) of the Kerala Act which deals with cases where the goods sold or purchased are contained in containers or are packed in any packing material. It specifically provides that the rate of tax and the point of levy applicable to turnover of such containers or packing materials will be the same as those applicable to the goods contained or packed. This rule will apply even in a case where the containers or the packing materials had already been subjected to tax under the Act. It also provides that the rule will apply "whether the price of the containers or the packing materials is charged separately or not". In view of these clear provisions of section 5(3-D) of the Karnataka Act and the corresponding provisions of section 5(5) of the Kerala Act there is no ....