Vikram Nath, J. - (1.) THIS trade tax revision has been filed by the Commissioner of Trade Tax, U.P., under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, "the Act") against the judgment and order of the Trade Tax Tribunal, Bench II, Meerut, dated August 16, 1995 whereby the Tribunal has dismissed the second appeal filed by the Department and had affirmed the order passed by the appellate authority holding that the dealer was not liable to pay any tax on the bottling charges, which had been subjected to tax by the assessing authority treating it to be the price of the bottle in which the liquor had been sold.
(2.) THE dispute relates to the assessment year 1989 -90. The dealer is involved in the manufacturing and sale of country liquor which is an exempted commodity under Section 4(a) of the Act. During the assessment proceedings the assessing authority issued show -cause notice calling upon the dealer to submit its explanation with regard to the five points mentioned in the notice. This revision is confined only to the issue raised in point No. 5 of the show -cause notice. The dealer was called upon to submit his explanation as to why tax be not levied on the price of the bottles in which the liquor had been sold, amounting to Rs. 91,19,705.20. The dealer submitted his reply alleging that it was not involved in purchase and sale of bottles. The bottle had been used only for the purpose of transportation of liquor and as an economical means. It further stated that it had charged suitable charges from its purchaser at the rate specified by the Excise Department and such bottling charges included the price of the P.P. caps, seal, label and bottling. The assessing authority did not accept the explanation of the dealer and recorded a finding that even though the dealer could not have charged anything over and above the price fixed by the Excise Department for the bottling charges and such bottling charges mainly comprised of the price of the bottles and only negligible amount covered the price of the cap, seal and label. The assessing authority thus treated the amount determined by the Excise Department for bottling charges as the price of the bottle and treating it to be a separate contract of sale, levied tax on the same and accordingly raised demand vide assessment order dated December 26, 1992. The dealer filed an appeal. The Deputy Commissioner (Appeals) vide judgment and order dated January 11, 1994 partly allowed the appeal of the dealer holding that demand of tax for the price of the bottle did not amount to separate sale and it was only on account of business compulsions that the dealer had used the bottle for sale of the liquor. There was no separate contract of the sale of packing material and accordingly no tax could be charged on the price of the bottles. Other issues raised in the appeal were not accepted by the appellate authority. As no second appeal was filed by the dealer, we are not concerned with any other issue. The second appeal filed by the Commissioner of Trade Tax was dismissed vide judgment dated August 16, 1995 against which this revision has been filed. Initially, the revision was allowed and this Court (vide judgment dated February 7, 2006 See Commissioner of Trade Tax v. Co -operative Co. Limited, [2007] 7 VST 175 (All) [App]. held that tax would be eligible on the bottle charges. Against the same the dealer had approached the honourable apex court by way of Civil Appeal No. 2124 of 2007 arising out of Special Leave Petition No. 1394 of 2006 which was allowed (vide judgment dated April 24, 2007 Reported as Co -operative Co. Ltd. v. Commissioner of Trade Tax : [2007] 7 VST 174 (SC).) and the matter has been remitted for reconsideration, in the light of the observations made therein. The operative portion of the judgment of the apex court is quoted hereinunder (at page 191 of 7 VST): We, therefore, are of the opinion that the matter requires reconsideration by the High Court. The High Court must, on the basis of the materials available on records, arrive at a finding as to whether there existed any implied contract for sale and/or whether in effect and substance keeping in view the fixation of price of different materials by the excise authorities in terms of the U.P. Excise Act, 1910 and/or Rules, 1910 framed thereunder any separate charges have been levied for prices of the bottles separately or not. For the reasons aforementioned, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. The matter is remitted to the High Court for its consideration afresh. No costs. 5. I have heard Sri B.K. Pandey, learned standing counsel on behalf of the Commissioner of Trade Tax and Sri Bharat Ji Agrawal, learned senior counsel assisted by Sri Piyush Agrawal, advocate, on behalf of the dealer. The following questions of law have been sought to be raised in this revision: (i) Whether the Tribunal was legally justified to knock off the tax levied on bottling charges by including it in the taxable turnover without considering the entire incriminating material and evidence available on record ? (ii) Whether the Tribunal was legally justified to accept the accounts of the assessee without considering the incriminating evidences available on record? 6. Pursuant to the order of the apex court original record of assessment was also summoned, which produced by Sri Pandey, learned standing counsel. It may be noted at the outset that the honourable apex court while remitting the matter for fresh consideration had restricted the scope of reconsideration only on the basis of the material available on record. Therefore this Court is not in a position to make any further inquiry with regard to the question to be determined. 7. Before proceeding further it will be relevant to refer to certain portions of the judgment of the apex court remitting the matter to this Court. The apex court had felt that a finding was essential to be recorded by the High Court to the effect as to whether the amount which was being charged as determined by the excise authority actually represented bottling charges or the price of the bottle. While dealing with this case the apex court has observed as follows (at page 186 of 7 VST): The High Court, in our opinion, failed to take into consideration the fact that the question as to whether there had been an implied contract for sale of bottles and any amount has separately been charged therefore was required to be determined. Each case is required to be determined on consideration of the relevant materials placed on record by the parties. The assessing officer proceeded on the basis that the assessee admitted to have levied charges for the bottles. It, however, failed to make a distinction between 'bottling charges' and the 'price of bottles'. When the excise articles are sold in a bottle, it must have a label containing the requisite informations as envisaged under the Excise Act and the Rules framed thereunder or the terms and conditions of licence authorising the dealer to deal within the commodity in question. The assessing officer did not proceed on the basis that the price of bottles forms a part of the turnover as contended by Mr. Dwivedi. 8. Further while dealing with the aspect relating to turnover as to whether it would include bottling charges/price of the bottle, the apex court observed (at page 189 of 7 VST): Definition of 'turnover' in our opinion, for the purpose of determining the question, is not very relevant. Interpretation clause must be construed having regard to the purport and object of the Act it seeks to achieve. The term 'turnover' may contain several ingredients. One of the ingredients of the said term, however, cannot be taken in isolation for the purpose of imposition of levy. Imposition of tax would be on the total turnover, assuming that the prices of the bottles were to be included in the price of the country liquor, provided one is leviable. If an exemption has been granted, it would be on sale of the articles in a deliverable form. There exists a serious dispute as to whether for the purpose of levying sales tax, a part of the commodity which is sold as a composite whole would come within the purview of the Act when sale of two different commodities can be bifurcated for levy of tax. Containers of the principal commodity which is the subject -matter of the contract of sale may have to be taken into consideration for the purpose of arriving at the total turnover, but even for that purpose there has to be an element of ad idem of mind between the purchaser and seller. If, by reason of express contract or implied contract, the containers are also sold, indisputably the same would be exigible to tax, as has been held in Commissioner of Taxes, Assam v. Prabhat Marketing Co. Ltd. Gauhati : [1967] 19 STC 84 (SC) : AIR 1967 SC 602, but it is difficult to accept the contention of Mr. Dwivedi that even in absence of such a contract, sales tax would be leviable. Reliance has been placed by Mr. Dwivedi on Jamana Flour & Oil Mills (P.) Ltd. v. State of Bihar : [1987] 65 STC 462 (SC) : [1987] 3 SCC 404, wherein this Court was not dealing with a situation of the present nature. It was held: 3. The dealer filed a revision before the Tribunal and contended that the demand of sales tax payable at different rates on the calculated turnover of gunny bags was not at all warranted as no price had been charged for the containers. The Tribunal found: (1) The dealer transferred the property in the gunny bags, the packing material, to the purchasers for price. (2) The price of the gunny bags was included in the consolidated rates of price charged by the dealer. (3) There was an implied agreement for the sale of gunny bags between the dealer and the different purchasers to whom the wheat products were supplied. (4) The transfer of gunny bags was impliedly covered by the contract of sale with regard to the wheat products. On these findings the Tribunal held: We hold that the learned lower courts were justified in levying tax at a different rate on the turnover on account of sale of gunny bags in which the wheat products were sold. It further found: The learned Deputy Commissioner has given a direction for determination of the turnover on account of sale of gunny bags. On being asked the applicant accepted that the accounts maintained by him would reveal the exact number of gunny bags used in the transaction of sale under consideration as also the price of the same. Hence we direct in modification of the orders passed by the learned Deputy Commissioner in this behalf that the learned assessing officer should ascertain from the accounts, the turnover on account of sale of gunny bags as container of wheat products during the period under consideration and assess tax thereon at the prescribed rate of 4 1/2% per cent. The balance turnover shall be assessed at 2 per cent. Reliance has also been placed by Mr. Dwivedi on Chhatta Sugar Co. Ltd. Mathura v. Commissioner of Sales Tax, [1991] UPTC 341, wherein a learned single judge of the Allahabad High Court, without any discussion, opined that the containers would also be taxed. Inclusion of bottles as a separate item in the notification dated September 7, 1981, in our opinion, is not relevant. The appellant is not a dealer of bottles. Had it been a dealer of bottles, he might have been exigible to sales tax in terms of the said provision. Thus, without adverting to the question as to whether there had been an implied sale, entry 20 will have no role to play. We may also consider the matter from another angle. A tax may be leviable at different rates. Definition of 'turnover' having undergone an amendment and being expansive in nature, whether would it be permissible to segregate it to make different commodities for the purpose of imposition of tax at a higher rate, is a question which would, in our opinion, merit consideration. We are not oblivious of the fact that if the sale is in relation to two different commodities, it may be permissible to levy tax at different rates, but not when the definition of 'turnover' includes a wide range of subjects including the package. Only for the purpose, the concept of implied contract of sale would assume significance. 9. Now in the light of the observations contained as above, I proceed to deal with the respective arguments made at the Bar. Sri Pandey has strongly relied upon the notification or the circular issued by the Excise Commissioner determining the price which was to be charged by the dealer on the outer -limit, which was different for different sizes of bottles, i.e., full, half and quarter bottles. According to it for the relevant assessment year 1989 -90 for the dealer in question, i.e., Co -operative Distillery, Saharanpur, bottling charges which included the price of the bottle, label, capsule and packing for a full bottle to be Rs. 2.60, for half bottle to be Rs. 2.30 and for quarter bottle to be Rs. 1.57. His submission is that the price of the bottling charges mainly comprised the price of the bottle and the dealer in his bills as also in his returns had shown such price as bottling charges and this being a separate contract for sale was only for the price of the bottle and therefore, would be liable to tax. It has also been submitted that the price of the liquor as fixed by the Excise Department and under the exemption clause the sale of liquor alone is exempted and not the material used for its packing in effecting the sale. Sri Pandey has referred to the definition of "sale" as given in Section 2(h) of the Act and submits that the bottles had been separately sold. His submission is that the assessing authority had rightly levied tax on the bottling charges being the price of the bottle which had been realized by the dealer separately from its purchaser. In support of his submission he has relied upon following decisions: (1) Chhatta Sugar Co. Ltd. v. Commissioner of Sales Tax, U.P., Lucknow reported in, [1991] UPTC 341; (2) Commissioner, Trade Tax v. Co -operative Co. Ltd. Saharanpur reported in : [2007] 5 VST 78 (All) : [2006] UPTC 494. 10. On the other hand, Sri Bharat Ji Agrawal has submitted that judgment of the appellate authority and the Tribunal do not suffer from any infirmity. According to him, the tax is to be levied on the turnover of sale as provided under Section 3 of the Act. Further according to him the "turnover" as defined under the Act at the time of the relevant assessment year, clearly mentioned that the amount for which goods are sold shall include any sums charged for anything done by the dealer in respect of the goods sold at the time of or before the delivery thereof. He has then referred to the Explanation mentioned in the second part of Explanation II(i) to Section 2(i) of the Act which only refers to the cost of freight or delivery, or cost of installation or the amount realised as sales or purchase tax as not forming part of the turnover provided such amount had been charged separately. According to him as the packing of the goods was an essential part to effect the sale of liquor and not mentioned in the second part of the Explanation, it would form part of the turnover even if charged separately. He has further submitted that the rate determined by the excise authorities, was not only for the price of the bottle but in addition to the price of the bottle it included the expenditure incurred under various other heads like P.P. corks, seal, label, the bottling charges and the labour incurred therein. According to him, the price of the bottle was never charged separately. There was no way that the turnover of the sale of bottle could be determined so as to determine the tax liability thereon. Sri Agrawal has relied upon the following decisions: (1) Commissioner of Saks Tax, M.P. v. Byramshaw K. lllava & Sons reported in : [1980] 45 STC 249 (MP). (2) Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh reported in : [1978] 41 STC 147 (All) : [1977] UPTC 81. 11. Having considered the submissions made at the Bar, in view of the discussion made hereinafter, it would be difficult to determine the price of the bottle. Until and unless price of the bottle is determined, tax could not be leviable merely on assumption and approximation. Even otherwise according to the definition of the word "turnover" the amount spent for doing anything in respect of the goods sold, would form part of the turnover. The tax is leviable according to Section 3 of the Act on the turnover of sale. The liquor being an exempted item, its sale would be exempted and the exemption would be on the turnover of its sale. Even otherwise tax is levied on the turnover of the goods sold. Therefore, any exemption would be on the turnover of sale until and unless provided otherwise. 12. It may also be noted here that tax on packaging material was introduced in the Act with effect from August 1, 1990 vide Section 3AB of the Act. The present case relates to the assessment year 1989 -90 which came to an end on March 31, 1990 and therefore, packaging material was not liable to be taxed till that time. Further, the definition of "turnover" was also amended with effect from August 1, 1990 and the Explanation was substituted which also included the price of the packing material specifically in the turnover. 13. It was only on account of the confusion being created with regard to the taxability of the packaging material as to whether it is charged as a part of the price of the goods or separately and at what rate, that the definition was amended as also Section 3AB was introduced in the Act. Since prior to it there was always an issue with regard to the rate of tax to be applied to the packaging material, it was provided vide Section 3AB that the packaging material would be charged at the same rate as the goods. 14. Now coming to the question as to whether the bottling charges or the price of the bottles are one and the same or different, it is apparent from the circular/notification issued by the Excise Department fixing the price to be charged by the dealer per bottle of different sizes that it was not only the price of the bottle but in addition to the price of the bottle it included the price of several other items including labour charges. From the record there is no material which could be pointed out by the learned standing counsel which could specifically determine the price of the bottle and therefore, in the light of the observations made by the apex court it is difficult to determine the price of the bottle. The bottling charges not only included the price of the bottles but other expenditure which was not exigible to tax. Therefore, this Court is unable to determine the price of the bottle separately. As already noted that further enquiry has not been permitted by the apex court and the finding is to be recorded only on the basis of material on record. Therefore until and unless the price of the bottle could be determined separately no tax liability could be fastened on the dealer by taking the bottling charges fixed by the Excise Department to be the price of the bottle. Thus, the finding recorded by the appellate authority and the Tribunal cannot be disturbed in this revision. 15. The authorities relied upon by the counsel for the parties have been examined but none of them is applicable in the present case, except the decision in the case of Co -operative Co. Ltd. : [2007] 5 VST 78 (All) : [2006] UPTC 494 which was inter parties. However this case will not help the Department as it was decided ex parte against the dealer and according to the counsel for the dealer on a recall application being filed the order has since been recalled. 16. In view of the discussion made above, the revision fails and is, accordingly, dismissed. 17. There shall however be no order as to costs. ;