BIJOY SINGH BIMAL KUMAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) This writ appeal is directed against the order dated 4.12.97 passed by a learned Single Judge of this Court in Civil Rule No. 918/97.The appellantNo.l M/s. Bijoy Singh Bimal Kumar is a wholesale dealer of food articles. The firm sells food articles like sugar, pulses, cereals etc. packed in gunny bags and edible oiil packed in tin containers. For the period ending 31.3.94 the dealer filed his annual return stating that the goods sold are exempted from tax u/s 9 of the Assam General Sales Tax Act, 1993, for short'the Act, 'However, the Assessing Officer was of the opinion that as the goods were sold in containers, the price thereof was realised and it formed part of the sale price realised by the dealer. The Superintendent of Taxes determined the sale of containers at 1% of the total sale (by weight) and imposed tax at 8% as provided u/s 8 of the Act. Feeling aggrieved , the dealer moved before the competent authority but the revisional authority uphold the levy of tax on containers, hence the writ petition. The learned Single Judge vide impugned order dismissed the writ, holding that there is no merit, hence the present appeal.

(2.) In the present case, there is no dispute at the Bar that the goods sold by the assessee are exempted from tax u/s 9(1) of the Act. The list of exempted items is provided in Schedule I of the Act. There is also no dispute that the containers, that is, the gunny bags and tin are liable to be taxed at 8% u/s 8 of the Act. Shri O.P. Bhati, learned counsel for the appellant has also submitted that although the seller had not charged separately for the containers used as packing materials, these were not sold without consideration. As a matter of fact, the practice is that the weight of the gunny bag is included in the costs of materials. The goods contained in the gunny bage are weighed and the price is realised from the total weight of the goods including the bag. At this stage, it will be useful to refer to Explanation 2 of sub- clause (34) of Sec tion 2 of the Act, which reads as follows :

(3.) The section thus provides by legal fiction that the packing materials shall be deemed to have been sold along with the goods. While dealing with the above deeming provision, the learned single Judge observed :