A.P.SEN, J. -
(1.) THIS order shall also govern the disposal of Miscellaneous Civil Case No. 291 of 1965 (The Commissioner of Sales Tax, Madhya Pradesh v. Perfect Pottery Company, Ltd., Ratlam) heard along with this reference.
These are references by the Sales Tax Tribunal, Madhya Pradesh, under Section 44(1) of the Madhya Pradesh General Sales Tax Act, 1958, at the instance of the Commissioner of Sales Tax, Madhya Pradesh and the question for decision is whether, in the facts and circumstances of the case, sales tax can be imposed under the Madhya Pradesh General Sales Tax Act, on the sales of coal ash and cinders in the year 1961 and of coal ash and empty drums in the year 1962 by M/s. Perfect Pottery Company Ltd., Ratlam.
(2.) THE question relates to the assessment for tax purposes in the assessment years 1961 and 1962 of the assessee, M/s. Perfect Pottery Co. Ltd., Ratlam, a manufacturer of stone -ware, pipes and sanitary fittings. During the assessment years in question, the Sales Tax Officer, Ratlam, subjected the assessee to tax on its sales of coal ash and cinders worth Rs. 17,583.72 P. in the year 1961 and of coal ash and empty drums amounting to Rs. 27,237 -52 P. and Rs. 975 in 1962. The assessments were upheld in appeal by the Additional Appellate Assistant Commissioner of Sales Tax, Indore. In second appeal, the Sales Tax Tribunal, relying on the decision of the Gujarat High Court in Ambica Mills Ltd. v. The State of Gujara  19 S.T.C. 1, held that the sale transactions of coal ash and cinders and empty drums were not liable to sales tax as the assessee was not a dealer in those commodities. The Tribunal observed : - All these sales were made regularly but they were not made as a part of their business activity but only to get rid of the waste product or unserviceable stocks.
In the statements of the case as sent by the Tribunal the material facts had not at all been set out and they were not to be found even in the order which it had passed disposing of the second appeal. Apart from this, the decision of the Gujarat High Court in Ambica Mills case  19 S.T.C. 1, on which the Tribunal had relied, has been partly reversed by their Lordships of the Supreme Court in The State of Gujarat v. Raipur .(  19 S.T.C 1.). In the light of that decision, this court by its order dated 16th November, 1967, required the Tribunal to submit further statements of the case. In compliance of that direction, the Tribunal has now furnished a supplementary statement of the case in each year of assessment.
(3.) THE facts which emerge from these supplementary statements of the case are these : In the period from 1st January, 1961, to 31st December, 1961, the assessee effected the following sales of coal ash and cinders : -
Value of coal ash and cinders(i) Coal ash .... Rs. 7,19247 P.(ii) Cinders .... Rs. 10,391 -25 P. - - - - - - - - -Total Rs. 17,583 -72 P. - - - - - - - - - Similarly, in the period from 1st January, 1962, to 31st December, 1962, the sales of coal ash and empty drums were of the following extent: - Value of coal ash and empty drums(i) Coal ash .... Rs. 27,237 -52 P.(ii) Empty drums.... Rs. 975.00 P. - - - - - - - - -Total Rs. 28,212.52 P. - - - - - - - - - These sales show that they were made regularly in each month and sometimes three to four times in a month and to different purchasers. In the years in question, the sale proceeds were accounted for in the relevant coal consumption accounts, set out below : - 1961 Coal Consumption Account (24) To Coal consumption Rs. 2,85,902.34 By sale of ash Rs. 17,583.72 By rate difference and adjustment 7,117.35 Transferred to profit and loss account 2,61,201.27 Rs. 2,85,902.34 Rs. 2,85,902.34 1962 Coal Consumption Account (24) To Coal consumed Rs. 3,16,770.53 By sale of coal cinder Rs. 27,237.52 By balance trans - ferred to profit and loss account 2,89,533.01 Rs. 3,16,770.53 Rs. 3,16,770.53 After allowing credit for these sales in the coal consumption accounts, the balances of Rs. 2,85,902.34 in the year 1961 and Rs. 2,89,533.01 in the year 1962, were duly transferred to the respective profit and loss account for the relevant year. ;