TMI Blog1976 (11) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... ices prepared by the vendors showed the prices of the kerosene and the prices of the tins separately. Similarly, when the appellants sold the said kerosene in Tamil Nadu in the same sealed tins, the appellants also showed the prices of the kerosene separately and the prices of the tins separately. The prices of the tins so sold amounted to Rs. 69,752.50 for the assessment year 1969-70. The appellants claimed before the assessing authority that this amount should not be included in the assessable turnover. According to the appellants, there was no sale of the tins by the appellants to their customers and, in any event, the turnover referable to this case has to be excluded under rule 6(cc)(i) of the Tamil Nadu General Sales Tax Rules, 1959. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this order which is challenged in the present appeal by the appellants herein. Under the above circumstances, two questions arise for consideration. One is, whether the disputed turnover is liable to be assessed at all. If the appellants succeed on this, no further question arises in this appeal. However, if the appellants lose on this point, the second question which arises is regarding the actual rate of tax that should be applied to the disputed turnover. As far as the first question is concerned, the learned counsel relied on, as before the authorities below, rule 6(cc)(i) of the Rules. According to the said provision: "6. The tax or taxes under section 3, 4 or 5 shall be levied on the taxable turnover of the dealer. In determining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, to sell the kerosene in sealed tins in which they were. This view of ours derives support from several decisions of this court. United Bleachers Ltd. v. State of Madras[1960] 11 S.T.C. 278. is a decision of a Bench of this Court in relation to such a question. This Court observed: "The question whether there has been a sale of the material would depend on the contract between the parties, expressed or implied. A mere contract of service, although a transfer of a movable property is involved therein, cannot by itself imply a sale. For example, in the case of a bleaching and dyeing contract, the use of the materials utilised for the purpose of bleaching or dyeing though charged for even at a profit, would not amount to a sale, for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials as such. Such an intention might be expressed or implied; but in the absence of such an intention, there could be no sale.......... Thus, in order that there could be a levy of sales tax, there should be a sale. Whether in regard to packing materials utilised in the performance of a contract between the parties there was a sale, would depend on the agreement between the parties. Such an agreement could be express or implied. Where the main contract was one of sale of goods as packed, such an agreement to sell the packing materials could, having regard to the nature of the contract, be readily implied; but where the main contract was merely one of service, the fact that in the performance of such service packing materials are used and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to the fact that kerosene is liable to single point levy at the rate of 5 per cent. Entry 35 of Schedule I of the Act merely refers to kerosene and nothing more. Consequently, on the finding of the authorities, with which we have agreed, that there had been an implied contract for the sale of the tins, the turnover referable to the sale of the tins cannot be taxed at the same rate as the turnover relating to kerosene. The position might have been different if a single, consolidated or composite price has been charged for the kerosene along with the tins. But, as in the present case, where the kerosene has been charged separately and the tins have been charged separately, the rates applicable to turnover relating to kerosene cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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