PANACHAND JAIN, J. - (1.) THIS application under Section 15 (3a) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as 'the Act') is deemed to be an application for revision under Section 15 (1) of the Act as amended by the Rajasthan Sales Tax (Amendment) Act, 1984, in accordance with the provisions of sub-section (10) of Section 13 of the aforesaid Amending Act. We have, therefore, heard the learned counsel for the parties treating the reference application as a revision petition under the amended provisions of Section 15 of the Act.
(2.) THE question which arises for consideration in this revision petition is as to whether empty cable drums would fall within the expression "packing materials" occurring in the Notification issued by the State Government on March 27, 1971 and so would be taxable at the rate of 3% and not at the general rate of 7%. M/s. Sitaram Satish Chand and Company (hereinafter called 'the Assessee') deals in the sale of cable drums, empty wooden boxes and other items. The Assistant Commercial Taxes Officer, Ward II, 'b' Circle, Jaipur, while as easing the turnover of the assessee for the assessment year 1973-74. relatable to the period December 17, 1972 to October 25, 1973, held by his order dated September 16, 1974 that empty cable drums used for rolling cables were taxable at the general rate of 7% as 'cable drums' did not find place in the list of 'pacing material' contained in the Notification issued by the State Government on March 27, 1971. The assessee filed an appeal before the Deputy Commissioner (Appeals), Commercial Taxes, Jaipur, who upheld the order passed by the Assessing Authority and dismissed the appeal of the assessee by his order dated February 24, 1975. Thereafter the assessee filed a revision petition before the Board of Revenue, which was heard by a Single Member of the Board. It was held by the Single Member of the Board of Revenue by his order dated July 19, 1976. that the items enumerated in the list of 'packing material' given in the Notification dated March 27, 1971, were illustrative and not exhaustive and that 'cable drums' used for transporting cables must be considered as packing material for (he purposes of levying tax under the Act. An appeal was filed by the Assessing Authority before a Division Bench of the Board of Revenue,but, it was dismissed by the order dated April 16, 1979 and it was held that cable drums were barrels, wherein the hollow portion is used for winding up the cables and that the cables were rolled round the drum in order to facilitate the handling and transport of the cables and, therefore, 'cable drums' were covered by the entry relating to packing material, which was taxable at the rate of 3%. The Commercial Taxes Officer (Revision), Ajmer. then filed an application under Section 15 (1) of the Act, before the Board of Revenue for Rajas-than. with the prayer that the following question of law arising out of the order of the Division Bench of the Board of Revenue dated April 16, 1979 be referred to this Court for its opinion:- "whether in the facts and circumstances of the case the turnover of Rs. 1,85,761/- of rolling drums used for rolling of cables was taxable at the rate of 3%?" As the aforesaid application filed under section 15 (1) of the Act was not decided by the Board of Revenue within the statutory period of 180 days, the present application under Section 15 (3a) of the Act was filed by the Commercial Taxes Officer (Revision), Ajmer before this Court. As mentioned above, this application for reference has been treated by us as a revision petition under the amended provisions of Section 15 of the Act.
(3.) THE turnover of every dealer in respect of sales or supplies of goods, beyond the specified limit, has been made liable to payment of sales tax under the provisions of Section 3 of the Act. Section 5 authorises the State Government to prescribe the rate at which tax is payable by the dealer under the Act and to notify the same in the official gazette. Proviso (5) to Section 5 presumes an implied sale of packing material when goods are sold after being packed in any material and in such cases sales tax is leviable on the sale of packing material, if any, at the same rate which is applicable to the sale of the goods themselves, unless the packing material is separately the price thereof would form part of the sale price of the goods and would be liable to tax at the rate applicable to the goods themselves. For example, it is practically, impossible for a dealer to sell liquor or oil or any other liquid without packing the same in bottles, tins, barrels or polythene bags. In all such cases, the charges for packing material, even if separately made, would form part of the sale price of the goods and would be liable to tax at the rate applicable to the sale of goods themselves But-in the cases of solids, the goods may be required to be packed in gunny bags, wooden boxes (Khokhas) tin boxes or other packing material for the purpose of carrying the goods sold from the place of sale to the place of the purchaser. Such packing charges are post-sale charges, as they are not required to be made in respect of goods before or at the time of delivery, but are required to be made for carriage of goods to their destination. Sometimes, the packing material may be comparatively of insignificant value, while at other times the bottles, containers or other packing material may be of comparatively high value. THE Assessing Authority has thus to consider the question whether there was an agreement between the parties, express or implied, for the sale of packing material or whether the packing material used in a particular case was merely employed as a convenient vehicle to put the purchaser in possession of the goods sold. When the value of the packing material is insignificant, it may conveniently be implied that the packing material was sold merely as a vehicle to put the purchaser in possession of the goods sold. But when the value of the packing material is not insignificant, it may be presumed that there was an agreement, express or implied, regarding the sale of packing material. When cables are sold, they must be wrapped round drums as a convenient mode of transporting the goods sold from the place of the seller to the purchaser. The State Government issued a Notification dated March 27, 1971, under Section 5 of the Act. prescribing the rate of tax payable by a dealer in respect of sale of packing materials at the rate of 3%. The description of the goods given in the aforesaid Notification relevant to our present purpose, runs as under:- "1. Packing material, that is to say,- (i) Gunny bags and hessian, (ii) Jute twine, (iii) Craft paper and craft paper bags, (iv) Empty tins and empty barrels, (v) Wooden boxes (Khokhas) and tin boxes, (vi) Empty bottles and corks, (vii) Polythene and alkathene packing materials, (viii) bituminised packing material, 3%". Thus it is clear from the aforesaid Notification that when packing material is separately charged for tax under the Act is leviable at the rate of 3% on the value of the packing material. ;