DWIVEDI, J. - (1.) THE Judge (Revisions) Sales Tax has referred to the court this question : "Whether under these circumstances the amount of deposit of these containers which remained unrefunded because of the non -return of the containers can be treated to be the turnover about the sale of these containers in the regular course of business of the applicant -dealer or not -
(2.) THE reference was earlier heard by another Bench of two Judges. The Bench directed the Judge (Revisions) to submit an additional statement of the case in regard to certain matters. The Judge (Revisions) has submitted the additional statement of the case. The case has now been heard by us. The assessment year is 1958 -59. The assessee, M/s. Dyer Meakin Breweries Ltd. (now styled as Mohan Meakin Breweries Ltd.) is a dealer, inter alia, in beer, rum and country liquor. In the said assessment year it sold beer and country liquor to licensed wholesale vendors and rum to the military. Beer and country liquor were supplied in glass bottles, and rum in wooden casks. While selling, it used to receive from the purchasers a certain amount of money as deposit for each bottle and each cask. Broadly speaking, the deposit was refundable on return of the bottle and the cask. In the assessment year a large number of bottles and casks were not returned by the purchasers to the assessee. So the amount of money in respect of them remained deposited with the assessee. The total amount of deposit in respect of the beer bottles was Rs. 33,553.93; in respect of the country liquor bottles Rs. 31,782.91; and in respect of the wooden casks Rs. 8,685.00. The sales tax authorities have held that these three deposits should be deemed to be the turnover of the assessee on the sale of unreturned bottles and casks. It may be noticed that the Judge (Revisions) has at times inaccurately described the deposit of money as "price". At the time of sale of beer, rum and liquor the parties did not regard the deposit as the "price" of the containers. Again, he has not given adequate attention to the important facts and circumstances of the case. He has also not tried to ascertain the intention of the parties from the terms of their agreement relating to the sale of rum, beer and country liquor.
(3.) IT appears from the statement of the case that the assessee used to take deposit of "the probable cost of the containers". The supplementary statement of the case shows that the cost of containers was separately charged in the bills issued by the assessee, that the assessee "charged sales tax from the purchasers on the contents of the containers but not on the containers" and that in its application under section 8 -A of the U.P. Sales Tax Act for registration, the assessee has stated that it was carrying on business of selling spirit, liquor, beer and carbonic acid gas. The application does not state that it was also carrying on business of selling containers. As regards sale of rum to the army, there is annexed to the supplementary statement of the case a circular from the Canteen Stores Department (India), Bombay, to all its Units located in U.P. This circular is dated 15th January, 1953. It contains conditions on which the assessee would supply rum to the Units in wooden casks of different capacities against deposits of certain amounts. It states that the assessee will supply rum in 30, 20, 10 and 5 gallons capacities wooden casks against deposits of Rs. 35, Rs. 25 and Rs. 10 per cask respectively. It further states that on return of the empty casks in sound condition and freight paid to the assessee "these deposits will be refunded to the Units concerned ........ after deducting hire charges of Rs. 4, Rs. 2 -8 -0, Rs. 1 -8 -0 and Re. 1 per month for 30, 20, 10 and 5 gallons casks respectively. No hire charges will be levied if the casks are returned ........ within sixty days from the date of supply." We think that this circular constitutes an agreement between the assessee and the Units who purchased rum in the assessment year.;