TaxTMI 
TaxTMI 
1998 (3) TMI 666
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....tioner is a registered dealer 6der the Punjab General Sales Tax Act, 1948 (hereinafter referred to as "the State Act") and also under the Central Sales Tax Act, 1956 (hereinafter referred to as "the Central Act"). It is being assessed under both the Acts. 3. For last many years, the petitioner has been claiming that the bottles sold along with beer remain its property for which security is charged from L-I licensees. A specimen of the receipt for security of empty bottles has been placed on the record of C.W.P. No. 12473 of 1992 as annexure P1. Vide its order dated April 12, 1982, the Assessing Authority, Ludhiana, created a demand of Rs. 9,266.99 against the petitioner for the assessment year 1979-80. That order was revised by the revisional authority, Ludhiana, who passed order dated February 25, 1983 and held that the turnover of Rs. 10,67,653 escaped assessment and the petitioner is liable to pay tax on the same rate. He accordingly created an additional demand of Rs. 1,08,900 and directed the Assessing Authority to issue necessary tax demand notice and challan form. The revisional authority also directed the issuance of notice under section 10(7) of the State Act. Aggrieved....
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....r impropriety, is not what the Assessing Authority could do under section II -A. The two are independent proceedings under different sections and merely because limitation is available for proceedings by the Assessing Authority itself does not wipe off any illegality or impropriety if it exists in an order; and if it so exists, section 21 gets attracted. For this, I would rely upon the judgment of the Punjab and Haryana High Court [Full Bench] in the case of Hari Chand Rattan Chand & Co. reported in [1969] 24 STC 258. A similar matter was examined also by the honourable Supreme Court in the case of Gurbaksh Singh reported in [1976] 37 STC 425, where it was held that in exercising revisional powers, the revisional authority was not encroaching upon the powers of the Sales Tax Officer. A similar principle was enunciated by the Supreme Court also in the case Swastic Oil Mills reported in [1968] 21 STC 383. In view of the foregoing discussion, it must be held that the revisional authority had jurisdiction in the matter which it exercised properly. I agree with the contention of the learned State counsel that the method of billing is not conclusive proof of the nature of the transaction....
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.... the present case was really not a security at all; it did not secure to the appellant anything. Unlike Lakshmanier & Son's case [1953] 23 ITR 202 (SC), in the present case a deposit was made every time a transaction took place and it was refundable under the terms of that transaction independently of other deposits under other transactions. In Lakshmanier & Sons' case [1953] 23 ITR 202 (SC), the deposit was in the nature of the assessee's trading structure and anterior to the trading operations, as were the deposits considered in the Shell Company case [1951] 32 Tax Cas 133. In the case in hand the deposit was part of each trading transaction. It was refundable under the terms of the contract relating to a trading transaction under which it had been made; it was not made under an independent contract nor was its refund conditioned by a-collateral contract, as happened in Lakshmanier & Sons' case [1953] 23 ITR 202 (SC)." 4.. I am afraid, the instant case is not one of "bailment" as was the finding given in the judgment of the Allahabad High Court reported in [1972] 29 STC 69 (Dyer Meakin Breweries v. Commissioner of Sales Tax, U.P.) relied upon by the learned counsel for the app....
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....87 passed by the Assessing Authority were dismissed on December 4, 1987 by the Deputy Excise and Taxation Commissioner (A), Patiala. The Sales Tax Tribunal also expressed its agreement with the orders passed by the Assessing and the appellate authorities and upheld the additional demand by holding that it was not a case of bailment but of sale. The relevant portion of the order passed by the Tribunal on February 22, 1990 dismissing the appeal of the petitioner in respect of the assessment year 1983-84, which has been placed on record as annexure P2 reads as under: "I have considered the arguments of counsel for both the parties and seen the record. The main point involved is that whether security deposited in respect of empty bottles is bailment or a sale. If security deposit is treated as part of sale price then what should be the rate of tax on the sale of bottles in the absence of C forms. For this contention of the appellant is that containers that is empty bottles are a cheap, mode of transporting beer to purchaser and there is no express or implied contract for the sale thereof. Further, these bottles are returnable and before bottled beer is sold to the purchaser, appropr....
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....inst "C" forms already supplied for beer except price of beer bottles be applied. No doubt, concessional rate of tax can be claimed but only against "C" forms produced. I find the "C" forms produced cover the sale value of beer only and these do not cover the value of empty bottles used. Shri Jhingan emphasized that "C" forms should be considered for a transaction and not for the value of the transaction. I hold that the appellant should have secured "C" forms covering the sale of bottles and produced the same' before the lower authorities as he had enough time to do so. Since this was not done, so no relief is admissible to him in this behalf. In the light of foregoing discussion, I find that bottles in this trade are not only means of transportation of the goods but also means to attract consumers. Their utility and importance is apart from the contents which are sold through them. Bottles are taken by the customer for the consumption of the contents and it is an outright sale. Further, I hold that the security deposit received by the appellant against bottles is part of the sale price. Concessional rate of tax on such deposits cannot be applied in the absence of "C" forms as the....
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....ttles are convenient mode of transportation of the product and are not taxable. The appellant had been canvassing that they do not sell bottles with the beer as they arc given on security obtained which in turn is refundable on the receipt of empties. Thus, their plea has been taken supply of bottle is a case of bailment and not for sale. This contention has been considered and rejected by various courts and also by this Tribunal in the year 1983 in the case of this very firm in Revision Nos. 70-71 of 1982-83 decided on September 19, 1983. As such, I do not find in going over the matter all over again. Since the bottles sold with beer form part. of turnover of the appellant-firm, they should have paid tax along with the returns. 'This was not done inspite of clear decision of this Tribunal on the point on September 19, 1983 so they failed to file correct returns as required under the law. Dealer did not disclose the sale turnover of the bottles. This resulted in the non-payment of tax due, There is no difference in tax due and tax payable as held by the Supreme Court of India in Associated Cement Go. Ltd. v. Commercial Tax Officer [1981] 48 STC 466. Therefore, the provisions of ....
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....the petitioner has prayed for directing the Sales Tax Tribunal to make reference of the following questions of law: "(i) Whether, in the facts and circumstances of the case the containers, viz., the bottles supplied with the sale of beer can be held to be sale of bottles and subjected to tax at the rate of 10 per cent is sustainable in law? Note.-Penalty is related to tax which ought to have been charged at 4 per cent. (ii) Whether, in the facts and circumstances of the case, the provisions of section 10(7) of the Punjab General Sales Tax Act can be invoked and the penalty imposed and upheld b the Tribunal, can be sustainable in law?" 12.. The facts 'incorporated in this petition show that the order passed by the Assessing Authority on May 12, 1987 creating additional demand of Rs. 9,49,465 in respect of the assessment year 1983-84 has been upheld by the appellate authority as well as by the Tribunal. Likewise, the orders passed by the Assessing Authority under section 9(2) of the Central Act and section 10(7) of the State Act have been upheld by the appellate authority and the Tribunal. The reference application filed by the petitioner has also been dismissed by the Tribu....
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....ed and tax can be charged in law from the date when the return was due or it could only be levied from the date of the assessment order? (iv) And lastly, whether in the facts and circumstances of the case, the order of the Tribunal upholding the levy of interest from the date when returns were filed is sustainable in law? The orders placed along with record of this petition relate to the assessment year 1983-84. 15.. In S.T.C. No. 24 of 1992, the petitioner has sought reference of the following questions of law: (i) Whether the facts and circumstances of the case and the course of dealings between the parties show that the amount of money claimed by the dealer which has been received as security was in fact a part of the sale and the effect thereof on the liability of the assessment? (ii) Whether, in the facts and circumstances of the case and on the true interpretation of the terms between the parties, can it be said that the bottles which were supplied with the beer for which security was charged amounts to sale of bottles in law? (iii) Whether, in the facts and circumstances of the case, assuming that there was sale of bottles can the agreement be....
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....r, in the facts and circumstances of the case, C forms already supplied with respect to the beer cannot in law be held to be sufficient to charge the concessional rate of tax on bottles also? (v) Whether the approach of the Tribunal for holding that it is a case of sale of bottles and not bailment is not perverse? (vi) Whether, in the facts and circumstances of the case, the containers, viz., bottles supplied with sale of beer can be subjected to tax at 10 per cent and the same can be sustained in law? The orders placed along with record of this petition relate to the assessment year 1981-82. 18.. In S.T.C. No. 28 of 1992, the petitioner has sought reference of the following questions of law: (i) Whether, in the facts and circumstances of the case, the containers, viz., the bottles supplied with sale of beer can be held to be a sale of bottles and subjected to tax at the rate of 10 per cent and the same is sustainable in law? (ii) Whether, in the facts and circumstances of the case, the rate of tax was leviable on bottles at the same rate of 4 per cent and not 10 per cent. The same rate ought to have been charged which has been levied on beer? (iii) Whether, in....
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.... of the three-Judge Bench of the Supreme Court in Punjab Distilling Industries Ltd. v. Commissioner of Income-tax [1959] 35 ITR 519; AIR 1959 SC 346 by arguing that the same was rendered on the interpretation of the provisions of the Income-tax Act and not the State Act and the Central Act. Mrs. Charu Tuli submitted that in view of the fact that the Assessing Authority, the appellate authority and the Tribunal have concurrently held that the transaction in question does not Constitute bailment within the meaning of section 148 of the Contract Act, 1872 but amounts to sale, the petitioner cannot escape the liability to pay the tax. She pointed out that in terms of rule 40 of the Punjab Breweries Rules, the petitioner can sell only bottled beer and L-1 licensees to whom the petitioner sold the beer were under an obligation to receive the same in sealed bottles and effect further sale to L-2 licensees in the same condition and, therefore, the price of bottles has been rightly included in the taxable turnover of the petitioner. She submitted that the paper method devised by the petitioner to show the receipt of security for return of empty bottles was nothing but an attempt to avoid it....
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....r stocks in the case of shortage of empty bottles in the brewery. The authorities constituted under the State Act and the Tribunal considered this: while determining the liability of the petitioner to pay the tax and recorded concurrent finding that in law the wholesaler was not duty bound to return the empty bottles and as a matter of fact empty bottles were not returned. In the order dated September 19, 1983, passed by it, the Tribunal referred to the argument raised with reference to the method of billing and held that it is not conclusive proof of the nature of transaction because the purchasing dealer, i.e., wholesale licensees to whom the applicant-dealer had sold the beer had to receive the same in, sealed bottles and the wholesaler had to part with the same in turn in favour of his clients, i.e., L-2 licensees in the same form, i.e., the beer in bottles with seats intact. The Tribunal further observed that the billing method showing separately the price of bottles as security as adopted by the applicant-dealer can make no difference as the purchasing dealer, the L-1 licensee, under the mandate of law is left with no domain or volition over the bottles, which he was liable t....
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....isposed of according to the directions of the person delivering them. The person delivering the goods is called the 'bailor'. The person to whom they are delivered is called the 'bailee'." 22.. In our opinion, the transaction is neither a bailment nor a pledge. It was a composite transaction. It was to start with an entrustment which could result in a sale of bottles in case of non-return of the bottles. 23.. Section 24 of the Sale of Goods Act, 1930, reads as under: "24. Goods sent on approval or 'on sale or return'.-When goods are delivered to the buyer on approval or 'on sale or return' or other similar terms, the property therein passes to the buyer- (a) when he signifies his approval or acceptance to the seller or does any other act adopting the transaction; (b) if he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and if no time has been fixed, on the expiration of a reasonable time." 24.. Section 24 has to be read along with sub-section (3) of section 19 which says that "unless a different int....
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....ch as the bottles were delivered to the buyer with the stipulation that if he returns the bottles in which the beer was sold in good condition within three months he will get back the deposit kept by him in that behalf. It meant that after the expiry of the said period, he had no right to claim the refund on return of goods. The transaction then became a sale. As stated above, the customer was under no obligation to return, as explained hereinbefore; he had a right to return the bottles in good condition within three months. Correspondingly, the petitioner-assessee was under an obligation to refund the deposit amount if the bottles were returned within three months in good condition; after the expiry of three months, the assessee was under no such obligation though it may be that for his own business or other reasons, it may yet accept the return of bottles and refund the deposit. 26.. In Punjab Distilling Industries Ltd. v. Commissioner of Income-tax [1959] 35 ITR 519 (SC); AIR 1959 SC 346, the question that arose for consideration before the Supreme Court was whether the collections by the assessee-company described in its accounts as "empty bottles return security deposit" we....
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....ty. Again, a wholesaler was quite free to return the bottles or not as he liked and if he did not return them, the appellant had no liability to refund. It would then keep the moneys as its own and they would then certainly be profit. The moneys when paid were the moneys of the appellant and were thereafter in no sense the moneys of the persons who paid them." 28.. In Arlem Breweries Ltd. v. Assistant Commissioner of Sales Tax [1983] 53 STC 172, the Bombay High Court applied the ratio of the Supreme Court's decision in Punjab Distilling Industries Ltd. v. Commissioner of Income-tax [1959] 35 ITR 519; AIR 1959 SC 346 and held that the amount taken by the assessees from their purchasers towards the bottles, though termed as "deposit" was the sale price thereof, the transactions constituting sales of bottles by the assessees to the purchasers liable to be assessed for sales tax. The said decision of the Bombay High Court has been followed by the Division Bench of this Court in Punjab Breweries Ltd. v. State of Punjab [1993] 90 STC 211. While dealing with the question which is identical to the one which is under consideration before us, the division Bench made reference to the provi....
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....he sold to his customers as under law he could sell the beer only in sealed bottles. We do not find any substance in the submission of learned counsel appearing for the dealer that the words 'security deposit' implied an obligation on the L1 licensee to return the bottles to the dealer. These words, in the absence of any other evidence, would not create an obligation on L1 licensee to return the bottles to the dealer specially when L1 licensee sells the beer to his customers in bottled condition with no corresponding obligation on the customer to return the empty bottles to the L1 licensee. It may further be noticed that there was no time frame fixed for the return of bottles by L1 licensee to the dealer to obtain the refund. It was further conceded by the learned counsel appearing for the dealer in this Court that on every consignment to the L1 licensee a fresh deposit of security was taken for the bottles supplied. It is admitted position in this case that not a single bottle was in fact returned by the L1 licensee to the dealer. We are in agreement with the view taken by the Bombay High Court in Arlem Breweries' case [1983] 53 STC 172 which in a way stands approved by their Lord....
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....ase, as noticed in the judgment of the Supreme Court, show that the appellant-company which carries on the business of manufacture and sale of beer used to sell beer to the retailers and wholesalers in bottles which were ultimately returned to it after the consumption of beer. With a view to ensure the return of bottles, a deposit used to be collected from the customers. The assessee issued circulars to its customers making it clear that the empty bottles and crates were not being sold and the bottles were to be returned so that the process of bottling beer could continue smoothly and steady supply could be maintained. The fresh supplies were made to the dealers upon the return of empty bottles. The assessee not only produced the circulars issued by it before the sales tax authority but also submitted figures to show that a substantial part of the bottles was returned by the customers. Their Lordships of the Supreme Court noticed the contents of the circular and then observed: "The Commercial Tax Officer was also of the view that the bottles and crates were higher in value than the amounts deposited as security. For these two reasons, it was held that the scheme was not genuine.....
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.... the High Court was in error in holding that when beer was sold in bottles, not only beer but also the bottles were sold and the price of beer along with the deposits became exigible to sales tax. Mr. Ganguli argued that the very fact that UB had a right to forfeit the deposits on the failure of the customer to return the bottles indicates that the bottles were sold. The deposits were nothing but price of the goods which was returnable when the bottles were resold. We are unable to uphold this contention. Whether the bottles and the crates were sold along with the beer or not will depend upon the intention of the parties. We have set out the terms and conditions under which the beer was sold and it does not appear from these terms and conditions that UB intended to sell crates and bottles to the customers. On the contrary, it was very anxious to get back these crates and bottles in order to use them again for further supplies. The fact that UB advised their customers to charge similar deposits from their consumers and get back the bottles from them goes to show that an out and out sale of the bottles had not taken place, By taking the deposits UB merely ensured the return of ....
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....r turn, will sell beer to the consumers and apart from the price of the beer, will recover forty paise per bottle as deposit to ensure return of the bottles. The bottles will ultimately be taken back by the appellant for which the trucks will be sent and the credit notes will be given to the customers for return of the empties. This scheme of recycling the bottles and crates will keep down the costs and ultimately will have the effect of reducing the price of beer and encouraging the customers to buy beer in larger quantities'. It was also found, as a matter of fact, that the rate at which the customer was required to make the deposit for the beer bottles was less than the cost of the beer bottles. Upon this basis this Court came to the conclusion that the intention of the brewer did not appear to have been to sell the beer bottles; on the contrary, the brewer was trying to ensure that the bottles in which the beer was supplied to consumers through its customers were brought back to it so that they could be used again. It was in this context that it was said, 'It does not appear that any time-limit was fixed for return of bottles in this case. But, even if such limit was fixed. it ....
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....y such agreement between retail licensees and the wholesale licensees. The security deposit taken by the petitioner from L1 licensees (wholesalers) contained a stipulation that the latter was to return the bottles within one month with a further stipulation that in the event of non-return of bottles within the stipulated period, the amount of security will be forfeited and there may be refusal to supply further stocks in case of shortage of empty bottles in the brewery. However, the wholesalers were not under any statutory obligation to return the bottles. The agreement also did not cast a mandatory duty on the wholesalers to return the bottles. It only envisaged two consequences of non-return of bottles, namely, the forfeiture of deposit made in lieu of bottles and the possibility of non-supply of stocks in the case of shortage of empty bottles in the brewery. The Assessing Authority, the Appellate Authority and the Tribunal have found that as a matter of fact, the bottles were never returned by the wholesalers to the brewery. No evidence was produced by the petitioner to establish the return of bottles by the wholesalers in terms of the conditions incorporated in the receipts ....
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....nsaction of the sale of goods, the respondents could not have charged tax on the price of bottles at the rate of 10 per cent. Shri Jhingan relied on State of Orissa v. Habib Rahimutulla & Co. [1982] 51 STC 403 (Orissa), Raj Sheel v. State of Andhra Pradesh [1987] 64 STC 398 (AP), Malva Vanaspati & Chemicals Co. Ltd. v. Commercial Taxes Officer, Special Circle, Jaipur [1987] 66 STC 267 (Raj), State of Tamil Nadu v. V. V. Vanniaperumal & Co. [1990] 76 STC 203 (Mad.) [FB] and Premier Breweries v. State of Kerala [1998] 108 STC 598 (SC); (1997) 10 JT 226 (SC). Mrs. Charu Tuli countered the submissions of Shri Jhingan and argued that if the petitioner wanted to avail the concessional rate of tax on bottles, then it should have submitted separate "C" forms before the Assessing Authority in respect of bottles. 37.. Having thoughtfully considered the respective submissions, we find merit in the argument of Shri Jhingan that the respondents cannot levy tax at different rates on the bottles and the beer. Admittedly, what was sold by the petitioner was bottled beer and not beer alone or bottles alone. The agreement between the petitioner and the licensees involved sale of bottled beer. Eve....
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....of 8 per cent only is leviable on the cardboard cartons under entry 97 of the First Schedule of the Kerala General Sales Tax Act, 1963 and not at the rate of 15 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 and there was no reason to include the value of the cartons in the value of the liquor for the purpose of levy of tax. The Assistant Commissioner of Sales Tax accepted the appellant's plea but the same was reversed by the Deputy Commissioner, Palghat, who exercised his revisional power to set aside the assessment order. Thereafter, the assessment was revised in the manner indicated by the Deputy Commissioner. The revised order was upheld by the Tribunal and the High Court. Their Lordships interpreted the provisions of Kerala General Sales Tax Act and held: "The underlying idea behind these rules is that packed goods are to be taxed as composite units. In calculating the turnover of the goods, the turnover of the containers will have to be included. The appropriate rate of tax will be the rate payable on the goods. It will not make any difference, if the containers are shown to have b....
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...., the Constitution Bench interpreted the provisions of Rajasthan Sales Tax Act, which are more or less in pari materia with the contemporaneous provisions of the State Act and held: "Under section 11B of the Rajasthan Sales Tax Act, 1954, before its substitution by Act No. 4 of 1979 with effect from April 7, 1979, the liability to pay interest on unpaid tax amount accrued on the dealer in two situations only, viz., (i) failure to pay the tax due under sub-sections (2) and (2A) of section 7, and (ii) failure to pay the tax within the time allowed by the notice of demand or thirty days from the receipt of the notice by the dealer. Section 11B before its amendment nowhere provided for payment of interest on the unpaid tax amount as found on final assessment from the date of the filing of the return under section 7 of the Act. If the amount of tax payable under sub-section (2) is paid on the basis of return, not on the basis of final assessment, there can be no question of payment of interest under clause(a) of section 11B. Similarly, if the tax is paid according to the return as required by sub-section (2A), in other words, if the full amount of tax due 'shown' in the return is pai....
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....al returns were filed but interest had to be paid only for the period subsequent to determination of sales tax under the final assessment after the expiry of the period allowed under the notice of demand." In view of this decision, the levy of interest from a date prior to the date of assessment and the time within which the petitioner was to pay the additional tax in terms of the order of assessment cannot be upheld. 43.. The last question that needs determination relates to the imposition of penalty. Shri B.K. Jhingan strenuously urged that the levy of penalty under section 10(6) and (7) of the State Act should be quashed because the petitioner did not refrain from making payment of tax with an oblique motive but was contesting its liability to pay the tax on the amount of security deposit received in lieu of the bottles. He relied on Oswal Spinning & Weaving Mills Ltd. v. State of Punjab [1996] 103 STC 491 (P&H), State of Rajasthan v. Jaipur Udyog Limited [1972] 30 STC 565 (SC), Additional Commissioner of Income-tax, Gujarat v. Chandravilas Hotel [1978] 115 ITR 118 (SC), Arvind Boards & Paper Products Ltd. v. Commissioner of Income-tax, Gujarat-IV [1982] 137 ITR 635 (Guj),....