2006 (9) TMI 276

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....s delivered by MARKANDEY KATJU J.-This appeal has been filed against the impugned judgment and final order of the Karnataka High Court dated January 16, 2004 in S.T.A. No. 74 of 2003 See [2004] 137 STC 187 (Karn.) under section 24(1) of the Karnataka Sales Tax Act, 1957. Heard Shri R.F. Nariman, learned Senior Counsel for the appellant and Shri Sanjay R. Hegde, learned counsel for the respondent. The appellant is engaged in poultry farming. It sells dressed chicken. The term "dressed " with reference to chicken means chicken which is bled, scalded, defendant-feathered, defendant-boned and freezed. The dressed chicken is sold by the appellant in polythene bags. The polythene bags are closed either by stapling or by crimping and fast....

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....essed chicken does not slip out of the plastic bag. Stapling or crimping does not make the polythene bag airtight or watertight. According to the appellant, when goods are sold in a polythene bag which is merely stapled or crimped and where the contents can be removed by merely opening the staple/crimp wire without tearing the polythene bag and without breaking the staple/crimp wire, the container cannot be considered to be a sealed container. Since the department was expressing a view that the sale by the appellant attracted sales tax, the appellant made an application to the Authority for Clarification and Advance Ruling under section 4 of the Act. The said authority after hearing, passed an order dated September 22, 2003 holding that ....

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....ourt held thus: "The learned counsel for the appellant (department) contends that the expression 'sealed container' means a container which is 'so closed that access (to the contents) is impossible without breaking the fastening'. This is one of the meanings given to the word 'sealed' in the Shorter Oxford English Dictionary. We are of the opinion that his contention must be accepted. . . There are four ways of selling confectionery: (1) in sealed tins; (2) in sealed card boxes or bottles; (3) in non-sealed card boxes or bottles; and (4) loose. According to the learned counsel for the respondent the only category which does not enjoy the exemption given by the notification is the first category, i.e., sale in sealed tin....

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.... covering any instrument or knife is needed or whether it could be done with bare hands or fingers. What is really to be considered is whether the contents of the container could be got at or whether access could be had to them without in any manner breaking any portion of the cover. It is not necessary for a container to be a sealed container that to get access to its contents, the container or cover has to be broken by removing the fastening although it would be the most common method of opening a sealed container. All that is necessary for a container to be a sealed container is that access cannot be had to its contents without breaking the fastening or some portion of the container. . ." In Nanjundeshwara Mart v. State of Karnataka [....

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....uring the relevant period. Mr. Chawla, for the Commissioner of Sales Tax, does not dispute this sample, but submits that normally a person would break the stapling even in such a case in order to extract the pop corn easily. Mr. Chawla may be correct and it is probable that a person greedily anxious to get at the contents would break the staples to do so, yet it is possible to get at the pop corn without breaking the staples. As such, in the facts and circumstances of this case, we feel that the stapled polythene bags are not sealed containers, especially as the Supreme Court in G.G. Industries [1968] 21 STC 63 held that access should be impossible without breaking the fastening." From a reading of the aforesaid decisions it appear....

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....igh Court is accepted then logically it will have to be accepted that every container will be a sealed container if it is closed in any manner. Such a view obviously cannot be countenanced. In our opinion in cases of both stapling and crimping, the staples and pins can be removed by the customer without breaking anything. Hence, in view of the decision of this court in Commissioner of Sales Tax, U.P. v. G.G. Industries [1968] 21 STC 63, it has to be held that the chicken in question is not sold in sealed containers. We, therefore, agree with the decision taken by the Delhi High Court in Commissioner of Sales Tax, Delhi v. Pop Corn [1982] 49 STC 36. For the reasons given above, this appeal is allowed. Impugned judgment of the Karnataka....