TMI Blog1991 (7) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... o excise duty. 2.. The assessing authority held that packing charges and the labour charges for packing were eligible for exemption under a Notification G.O. Ms. No. 3291, Revenue, dated October 1, 1960 only up to January 30, 1974. Therefore in the assessment year 1973-74 he had included the turnover under these headings for the period from January 30, 1974 to March 31, 1974. The assessing authority held that packing charges and labour charges for packing would certainly attract liability because these charges are incurred by the dealers in respect of goods sold at the time or before the delivery thereof He therefore held that these charges properly formed part of the sale price under section 2(h) of the Central Sales Tax Act, 1956. The A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is also seen from another order dated January 16, 1975, that the terms of delivery were f.o.r. Karuppur railway station, that the goods should be packed in single gunny bag and properly marked at no extra cost. If double gunny bags were to be used an extra cost of 50 paise per metric tonne was provided. There is one significant clause in all the despatch advices and invoices which reads as follows: "Our responsibility ceases the moment consignment is handed over to the carrier and a R.R./L.R. is obtained for the goods. Claims for delay, shortage, damage to or loss of goods in transit should be made by the buyers against the carrier direct." These terms of the contract clearly show that the sale was at the boarding railway station an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclude against the assessee on the facts of the present case. 4.. We feel that the only question that has to be answered in this case is whether there was an agreement to sell the packing material, having regard to the facts and circumstances of the case and the nature of the goods. This is a pure question of fact and this question cannot be decided on the basis of fiction or surmise, nor can the question of fact be allowed to be lost sight of or side-tracked by copious citations. We have already pointed out that the delivery in this case is at the despatching railway station. The goods to be sold cannot be sold in a naked condition, but have to necessarily be packed in gunny bags or any other containers. The delivery is agreed to be at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing with the definition of the word "sale price" and the exclusion clause in the later part of the definition on which much reliance is placed by the petitioner. To repel the argument the Supreme Court has observed as follows: "This exclusion clause does not operate as an exception to the first part of the definition. It merely enacts an exclusion out of the inclusive clause and takes out something which would otherwise be within the inclusive clause. Obviously, therefore, this exclusion clause can be availed of by the assessee only if the State seeks to rely on the inclusive clause for the purpose of bringing a particular amount within the definition of 'sale price'. But if the State is able to show that the particular amount falls w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opra sold in the course of inter-State trade or commerce, was included in the taxable turnover. It was urged on behalf of the assessee that a separate bill for the container or itemising the bill made out for the goods would by itself, be decisive of the question. It was pointed out that the proper way to look at such transactions would be to find out whether there was express or implied agreement between the parties to sell the goods along with the packing materials. In this case we have already pointed out that there is an implied agreement to sell the magnesite in gunny bags. 8.. For all the reasons stated above we have no hesitation in upholding the concurrent findings of the assessing authority, Appellate Assistant Commissioner and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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