TMI Blog1985 (7) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... case and reassess the dealer under section 19 of the State Act, even though the question on which reassessment under section 19(1) is proposed was not agitated or canvassed before the first appellate authority?" 2.. The material facts, as stated in the statement of the case, giving rise to this reference may be stated in brief thus: The assessee, M/s. Khimji Vishramji Co., deal in cotton bales and was assessed to sales tax under the Central Sales Tax Act, 1956, for the Diwali year 1967-68. Packing material in which cotton bales were packed was assessed to tax separately under the theory of implied sale. While iron hoops were assessed to tax at the rate of 3 per cent bardana was assessed at 10 per cent. An appeal against this order was pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going through the records we are of the opinion that this reference has to be answered in favour of the department as the question referred to has already been decided by the two Division Bench decisions of this Court reported in (1984) 17 VKN 417 (Commissioner of Sales Tax, M.P. v. Tulsiram Bhagwandas, Gwalior) and page 431 (Commissioner of Sales Tax, M.P. v. Shah Jadhavji Kanji Co.) (printed infra). In view of this decision the learned counsel for the assessee-respondent, in fairness, submitted that the question referred to has to be answered in favour of the department. 5.. In the result this reference is accepted and the reference is answered in favour of the department and against the assessee. No order as to costs. Appendix [The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 18,636. In first appeal against the assessment it was contended that there was no sale of packing materials. This contention was rejected. 3.. In second appeal before the Tribunal, the appellant merely disputed the rate of tax and his contention was that packing materials should be charged at the rate provided for cotton. Following the decision of this Court reported in [1972] 29 STC 515 (Patel Volkart Private Ltd. v. Commissioner of Sales Tax) the Tribunal held that packing material is to be charged at the rate applicable to such material and not at the rate applicable to baled cotton. The appellant's contention was therefore rejected. 4.. Thereafter the case was reopened under section 19(1) of the M.P. General Sales Tax Act, 1958. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was that the question of taxability of packing material had already been decided finally by the Tribunal in second appeal and as laid down in sub-section (6) of section 38; the order passed in that appeal was final and the case could not therefore be reopened by the assessing authority under section 19(1) of this Act. The Tribunal accepted this contention as it came to the conclusion that the question of taxability of iron hoops had been decided by the Tribunal in second appeal and as the order of the Tribunal was final, the case could not thereafter be reopened by the assessing authority under section 19(1) of the said Act. It is in these circumstances that this reference has been made. 6.. The learned counsel for the revenue submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der entry 5, Part I, Schedule II, to the M.P. General Sales Tax Act, 1958. He, therefore, submitted that, in view of this decision, the question of reassessing the assessee at the rate of 7 per cent more as undeclared goods now does not arise and, therefore, the provisions of section 19 of the State Act are not attracted. 8.. So far as the merits of the case are concerned the assessee's contention no doubt has great force and in view of the Full Bench decision he is liable to be taxed for the iron hoops only at the rate of 3 per cent as declared goods and not at the rate of 10 per cent as undeclared goods as provided under section 8 and section 9 of the Central Sales Tax Act. But the question referred to this Court, as stated above, does ..... X X X X Extracts X X X X X X X X Extracts X X X X
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