S. D. DAVE, J. - (1.) THE Gujarat Sales Tax Tribunal at Ahmedabad has referred the following two questions to the High Court for the consideration and reply under the provisions contained under section 69 of the Gujarat Sales Tax Act, 1969 : " (1) Whether, on the facts and in the circumstances of this case the Tribunal was right in law in holding that the question regarding sales promotion expenses at 6 per cent on the price did or did not form part of sale price was beyond the scope of section 62 (1) (e) of the Gujarat Sales Tax Act, 1969 and was rightly not entertained ? (2) Whether, on the facts and in the circumstances of this case, the Tribunal was right in law in holding that separate agreement of packing materials formed a part of an agreement to sell goods in packed condition and as such sales of packing materials cannot be considered independently and were taxable at the rates of sales of goods passed, by reference to section 21 of the Gujarat Sales Tax Act, 1969 ?"
(2.) THE above said reference came to be made to this Court under the following facts and circumstances : THE assessee is a manufacturer of fluorescent tube lamps and general electric service lamps at its factory in the State of West Bengal. Its sales office is at Tilak Road at Ahmedabad, which is a registered dealer under the Gujarat Sales Tax Act, 1969. THE applicant had effected certain sales and later on had made an application under section 62 of the Act of 1969 for the purpose of determination of certain questions by the learned Deputy Commissioner. It appears that the assessee had sold 3,550 Nos. of fluorescent tube lamps at the rate of Rs. 10. 17 per piece to a sister concern known as M/s. Belrex India Ltd. , for an amount of Rs. 36,103. 50 and had charged sales tax at the rate of 14 per cent on the sale price as well as surcharge at the rate of 6 per cent on the amount of sales tax. Simultaneously the assessee had issued another bill, wherein it had charged an amount of Rs. 2,166. 21 as sales promotion expenses at the rate of 6 per cent on the sale price charged in the earlier bill and had also charged another amount of Rs. 1,065 as the cost of packing materials used in packing the said tube lamps as per the rate fixed and agreed between the parties. THE assessee had collected the amount of sales tax on the price of packing material at 4 per cent as per entry No. 12 of Schedule II, Part A of the Act and surcharge at 6 per cent. In the same way the assessee had sold general electrical service lamps following the same modus operandi by bill dated September 18, 1978. THE bulbs were sold for an amount of Rs. 1,012. 44 and the sales tax at 10 per cent and additional surcharge on the sales tax were separately charged by separate bill of the same date. THE sales promotion expenses at 6 per cent on the price and the outer packing charges as per enclosure were charged at Rs. 42. 12. On the same charge of outer packing the sales tax at 4 per cent and surcharge at 6 per cent were separately charged. Upon these facts the assessee had posed the following two questions for the determination of the Sales Tax Department : " (1) Whether, the view taken by the appellant was correct and whether the expenses charged towards sales promotion would form a part of sales price of the goods sold and liable to tax ? (2) Whether, an amount charged as packing charges can be said to be a sale of packing materials liable to pay tax at the rate of 4 per cent as sales tax ?" The learned Deputy Commissioner after considering the necessary evidence had passed the necessary orders which ultimately came to be challenged before the Tribunal. So far as the question regarding the amount of sales promotion expenses forming part of the sale price of the goods sold and liable to sales tax is concerned, the Deputy Commissioner had reached the conclusion that it was not possible for him to pronounce any decision on this question in view of the framework under section 62 of the Act. As regards the second question the Deputy Commissioner had held that the charges relating to the packing materials in respect of the two bills would attract the sales tax at 14 paise in a rupee and at 10 paise in a rupee under entry No. 92 and entry No. 41 of Schedule II, Part A to the Act respectively and that the additional tax in accordance with the provisions of section 4a of the Act would also be leviable. The above said decision rendered by the Deputy Commissioner, Sales Tax, came to be challenged by the assessee before the Gujarat Sales Tax Tribunal by filing Appeal No. 13 of 1980. After hearing both the sides the Tribunal had taken the view that the decision rendered by the Deputy Commissioner, Sales Tax, was alright and that, therefore no interference was necessary. In view of this finding the Tribunal had taken the view that the appeal filed by the assessee deserves to be dismissed. Consequently the appeal came to be dismissed by the orders dated July 28, 1981, by the Tribunal. Later on the assessee had made the necessary application to the Tribunal for making a reference of the above said questions to this Court and ultimately the questions as referred above have been referred to this Court by the Tribunal under section 69 (1) of the Gujarat Sales Tax Act, 1969.
(3.) THE first question which falls for our consideration is as to whether on the facts and circumstances of the case the Tribunal was justified in coming to the conclusion that the question regarding sales promotion expenses at 6 per cent on price did not form part of the sale price was beyond the scope of section 62 (1) (e) of the Act. When a reference is made to the provisions contained under section 62 (1) (e) of the Act, it becomes clear that the Tribunal was justified in saying so. A reference to section 62 (1) (e) shows beyond any manner of doubt, that if any question arises as to whether any tax is payable in respect of any particular sale the person concerned can move the Commissioner for making the necessary orders determining such question. It therefore becomes clear that section 62 (1) (e) relates to the question as to whether any tax is payable in respect of any particular sale. Section 2 (28) of the Act of 1969 defines the sale. Section 2 (29) of the Act defines the sale price. But even reading the abovesaid two definition clauses along with the provisions contained under section 62 (1) (e) of the Act of 1969, it cannot be stated that the questions which was posed for the determination of the Deputy Commissioner would fall within the purview of the abovesaid provision. Section 62 (1) (e) refers to the question as to whether any tax is payable in respect of any particular sale. THE question posed for the determination of the Deputy Commissioner of Sales Tax was not regarding as to whether any tax is payable in respect of any particular sale and the rate of tax payable thereon. On the contrary the question which was posed before the Deputy Commissioner was to the effect that as to whether the alleged sales promotion expenses at 6 per cent on the price would or would not form part of the sale price. It therefore becomes clear that the Tribunal was perfectly justified in confirming the view expressed by the learned Deputy Commissioner, Sales Tax, that the abovesaid question posed for determination would not fall within the purview of section 62 (1) (e) of the Act of 1969 and that the abovesaid question was outside the scope of the abovesaid provision of law. On a correct interpretation of section 62 (1) (e) of the Act of 1969, we feel that the abovesaid question which was posed for the determination of the Deputy Commissioner, Sales Tax, was definitely not covered within the purview of section 62 (1) (e) of the Act of 1969. In view of this position we answer and reply question No. 1 in affirmative, that is in favour of the Revenue and against the assessee. That takes us to the second question referred to the High Court which is in respect of the tax payable on the packing materials which had gone to the hands of the customer or the purchaser, namely a sister concern along with certain tube lights and the lumps. Mr. Pathak, the learned counsel, who appears on behalf of the assessee has invited our attention to certain documents on record with a view to persuade us to take a decision that as a matter of fact there were two different sales, one of the commodity sold and the other one of the packing materials in which the commodity was packed. The reference has been firstly made at annexure 3, the bill dated September 18, 1978, which is in respect of the sale of the article, namely, the fluorescent tubes. The bill which follows the abovesaid bill which finds its place at annexure 4, in which at item No. 2, the outer packing charges of an amount of Rs. 42. 12 have been mentioned. Annexure 5 is the bill dated September 22, 1978, which is in respect of certain other articles of an amount of Rs. 36,103. 50. The bill which follows the abovesaid bill is at annexure 6, in which there is a mention of an amount of Rs. 1,065 as the outer packing charges as per enclosure No. 1. The sales tax is at the rate of 4 per cent which comes to an amount of Rs. 42. 60, a further amount of Rs. 2. 56 has been charged on the abovesaid amount at the rate of 6 per cent.;