Hegde, J. - (1.) These appeals by certificate can be disposed of by one judgment. They raise common questions of law. The material facts are not in dispute. In Civil Appeals Nos. 498, 499 to 502 of 1970, the principal question of law that arises for decision is whether the producers who supplied the cement to the State Trading Corporation or its agents in gunny bags in pursuance of the directions given by the Government are liable to pay sales-tax on the turnover relating to the price of the gunny bags. The only other question that arises for decision in these appeals relates to the interpretation of Rule 6 (f) of the rules framed under the Madras General Sales Tax Act, 1959. This question will be considered while dealing with the other appeals. In the other appeals the question for decision is whether the selling agents of the State Trading Corporation are liable to pay sales tax in respect of the price of the gunny bags in which they sold the cement to the consumers. The High Court has decided both these questions in favour of the assessees. Aggrieved by that decision, the State of Tamil Nadu has come up in appeal.
(2.) Taking first the case of the transactions between the producers and the State Trading Corporation, there is no dispute that so far as the supply of cement is concerned, the same cannot be considered as "sales" within the meaning of the Madras General Sales Tax Act, 1959 in view of the Cement Control Order, 1958. The only question is whether the gunny bags in which the cement in question was supplied can be considered to have been sold. There is no dispute that if the price of the gunny bags is also held to have been wholly controlled then the supply of the gunny bags cannot be considered as "sales". This position must be held to be concluded by the decisions of this Court - See New India Sugar Mills Ltd. v. Commr. of Sales Tax, Bihar, 14 STC 316 and Chittar Mal Narain Das v. Commr. of Sales Tax, U. P., 26 STC 344 . Therefore all that we have to see is whether the price of the gunny bags in which the cement was supplied to the State Trading Corporation was controlled under Clause 6 (4) of the Cement Control Order, 1958. The relevant assessment years with which we are concerned in these appeals are assessment years 1959-60, 1960-61 and 1961-1962. It is admitted that the Central Government by its order dated March 26, 1959 informed all concerned thus: " Packing charges for cement for period commencing First April to Thirtieth June Ninteen Fiftynine will be Rupees Eleven Decimal five four per ton in New Gunny Bags."
(3.) Again by its order dated June 24, 1959, it stipulated that the packing charges for cement for the period commencing 1st July to 30th September 1959 will be Rupees 11.04 per ton, in new gunny bags. The Central Government by its letter dated December 26, 1959 informed the State Trading Corporation that it has accepted the Tariff Commission's recommendations in respect of the fixation of the packing charges and the principle that would be adopted was on the basis of the average of the maximum and minimum market price of the packing material during each week of the 9 months immediately preceding the quarter for which the charges were to be in force plus Rupees 1.25 per ton to cover incidental charges. By its telegram dated February 17, 1961, the Central Government informed all the State Governments that having regard to the prevailing jute bag price, the government was pleased to fix under Clause 6 (4) of the Cement Control Order, 1958 the charges for packing cement in D. W. as well as serviceable second hand D.W. Heavy Cases Jute Bags at Rupees 17/- per ton for the period effective from the 20th of February to the 31st March 1961. From these orders, it is clear that the Government of India was purporting to fix the price of the gunny bags in which the producers were required to supply cement to the State Trading Corporation. The learned Advocate-General of Tamil Nadu contended that the Central Government under Clause 6 (4) of the Cement Control Order, 1958 could have fixed only the maximum price of gunny bags and not the actual price; that being so, there was scope for bargaining between the producers of the cement and the State Trading Corporation. This contention has not been taken in the High Court nor in the appeal memo. The Central Government has not put in its appearance in this Court. Hence we cannot go into the question whether the Central Government had power to fix the actual price of the gunny bags. The fact remains, that the Central Government had fixed the actual price of the gunny bags. Its right to fix the price had not been disputed in the pleadings before the High Court nor does it appear from the judgment of the High Court that that question was urged before it. It is raised for the first time at the hearing. In the result, for the reasons mentioned above the contention that supplies of gunny bags by the producers amounted to "sales" must be rejected.;