B.S.DHILLON,J. - (1.) THIS order will dispose of Sales Tax Cases Nos. 2, 3, 4, 5 and 6 of 1973, Sales Tax References Nos. 12, 13, 14, 15 and 16 of 1973 and Civil Writ Petition No. 228 of 1975.
(2.) THE petitioner-company, M/s. Jagatjit Distilling and Allied Industries Ltd. , Hamira, is a registered company under the Companies Act as a public limited company and runs a distillery at Jagatjit Nagar for the manufacture and sale of potable spirits. For the purposes of packing the manufactured liquor, it has to use glass bottles, which glass bottles are according to the specifications and requirements as required under the Punjab Distillery Rules, 1932. The petitioner-company is obliged to supply liquor in the bottles which contain the excise mark and are specially manufactured for that purpose by the suppliers from whom the petitioner-company obtained its supply of bottles. Under the Punjab Excise Act, the price of liquor supplied including the packing (bottles) has been fixed by the excise authority and the liquor is supplied to the holder of L-13 and L-14 licensees who have been given the licences for the wholesale or retail vend of country spirit. There is no contract express or implied for the sale of bottles. The Assessing Authority under the Punjab General Sales Tax Act, 1948 (hereinafter referred to as the Act), assessed sales tax on the price of bottles as well, for the assessment years 1956-57, 1957-58, 1958-59, 1961-62 and 1963-64. The assessee having been unsuccessful before the Deputy Excise and Taxation Commissioner and also before the Sales Tax Tribunal, made an application under Section 22 of the Act, praying that the following questions of law in addition to the others, be referred to the High Court for being answered : 1. * * * * 2. Whether, on the facts and in the circumstances of these cases, the price of bottles is liable to sales tax when bottled liquor is sold ? 3. Whether, on the facts and circumstances of the case, there was any sale of the packing material (bottles) in view of the goods having been delivered at the instance of the excise authorities under the Punjab Excise Act, 1914 and the Rules framed thereunder, to such persons to whom the licence had been granted or the delivery order had been issued ? 4. Did the dealer have any volition in the sale of the goods ordered to be delivered to a particular licensee and whether such a delivery could constitute sale within the meaning of the definition as given in the Sale of Goods Act ? 5 * * * *
(3.) THIS reference came up before a Division Bench of this Court and the Bench answered all the three questions referred to above, in favour of the assessee. Consequently, the assessee was not subjected to sales tax for the assessment years referred to above. It is not disputed that the State of Punjab filed an appeal against that judgment in the Supreme Court which was also dismissed and thus the judgment of this Court became final. This judgment is reported as Jagatjit Distilling and Allied Industries Ltd. v. State [1971] 28 S. T. C. 709. Proceedings were also initiated for the assessment of sales tax for the years 1959-60, 1960-61, 1962-63, 1964-65 and 1965-66. The Assessing Authority imposed the liability of tax. The appeals of the company before the Deputy Excise and Taxation Commissioner were also dismissed. The Sales Tax Tribunal dismissed the second appeal of the assessee. The appeal concerning assessment year 1959-60 was dismissed on 1st November, 1960; for the year 1960-61 on 6th June, 1970, for the year 1962-63 on 13th May, 1970, for the year 1964-65 on 26th September, 1969 and for the year 1965-66 on 26th September, 1969. The assessee then filed an application under Section 22 of the Act and requested the Tribunal to refer the following questions of law to this court: 1. * * * * 2. * * * * 3. Whether, on the facts and circumstances of the case, there was any sale of the packing material (bottles) in view of the goods having been delivered at the instance of the excise authorities under the Punjab Excise Act, 1914 and the Rules framed thereunder, to such persons to whom the licence had been granted or the delivery order had been issued ? 4. Did the dealer have any volition in the sale of the goods ordered to be delivered to a particular licensee and whether such a delivery could constitute sale within the meaning of the definition as given in the Sale of Goods Act ? Additional question: Whether, on the facts and circumstances of the case, the decision dated 3rd August, 1971, of the Punjab and Haryana High Court in the case of the petitioner-company and reported in 28 S. T. C. 709, is binding for the year 1965-66, wherein the same questions of law are involved and petition under Section 22 of the Act to refer the question of law was pending before the Tribunal ? ;