9911796707
TMI Blog1971 (4) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... r for assessment Rs. 26,460.19 have to be deducted in view of rule 9(f)(ii) of the Kerala General Sales Tax Rules, 1963, and (2) even if the said deduction is not allowable the disputed turnover has to be taxed only at 2 per cent. at which copra was taxed on the ground that the sale of packing materials is only incidental to the sale of copra. Both these contentions were overruled by the Tribunal. The first contention was not pressed before us. 3. The second ground which alone was argued was that the turnover of Rs. 26,460.19 has to be taxed only at 2 per cent. It has been taxed at 10 per cent. as according to the Tribunal it represents the sale of packing materials and the declarations in form C were not furnished in support of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and the rules made thereunder." According to the definition the turnover of a dealer is made up of the consideration for the sale of goods and the charges made and recovered by the dealer for anything done in respect of the goods. Sales tax will be attracted, if at all, in respect of packing materials or containers as the case may be only if they have been the subject-matter of an agreement to sell either expressly or by necessary implication. The principle in such cases is no longer open to doubt in view of the decisions of the Supreme Court in Hyderabad Deccan Cigarette Factory v. State of A.P.[1966] 17 S.T.C. 624 (S.C.)., Commissioner of Taxes v. Prabhal Marketing Co. Ltd.[1967] 19 S.T.C. 84 (S.C.). and Razack & Co. v. State of Madras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned should ask and answer the question whether the parties in the instant case, having regard to the circumstances of the case, intended to sell or buy the packing materials, or whether the subject-matter of the contracts of sale was only the cigarettes and that the packing materials did not form part of the bargain at all, but were used by the seller as a convenient and cheap vehicle of transport. He may also have to consider the question whether, when a trader in cigarettes sold cigarettes priced at a particular figure for a specified number and handed them over to a customer in a cheap cardboard container of insignificant value, he intended to sell the cardboard container and the customer intended to buy the same? It is not possible to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The mere fact that in making out the invoice the expenses incurred in the use of gunny bags for transport of copra are separately shown by itself does not mean that there was any contract of sale, express or implied, in respect of gunny bags and other packing materials and the buyer intended to buy the same except as a vehicle for transport of the copra purchased. Further the value of the packing materials is so insignificant to the value of the contents that in view of the decision in Razack & Co. v. State of Madras[1967] 19 S.T.C. 135 (S.C.). , it is not possible to imply any separate contract of sale regarding the packing materials. The decision in Commissioner of Taxes v. Prabhat Marketing Co. Ltd.[1967] 19 S.T.C. 84 (S.C.). only illust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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