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2010 (3) TMI 1018 - HC - VAT and Sales TaxWhether, 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 v. State of Maharashtra [1995 (2) TMI 371 - BOMBAY HIGH COURT]? 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 purchase tax under section 14 would be leviable in respect of the purchases made before August 11, 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? Held that:- It is to be noted that in the matter of Dhariwal Bottle Trading Company [supra] this court held 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. In the present case, the respondents exported the chemicals out of India. For the purpose of export, the respondents used 315 new plastic drums as stated in the invoices produced by the learned counsel appearing for the applicant. This itself shows that the respondents especially purchased the new plastic drums for the purpose of export of chemicals. In any case the seller has to decide which type of packing material is required for safe dispatch of goods sold and supplied so that the purchaser shall not raise any objection about quantity/quality when he gets delivery of the goods. Therefore, the judgment in case of Dhariwal Bottle Trading Company cannot be considered for deciding the present case in hand. In favour of revenue.
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