Saramma Joy vs State of Kerala

G. Sivarajan, J.—These six tax revision cases raise a common question as to whether empty bottles are packing materials in order to avail the benefit of concessional rate of tax as provided u/s 5(7) of the Kerala General Sales Tax Act, 1963 as it stood at the relevant time.

The assessment years concerned are 1983-84, 1984-85, 1985-86, 1986-87, 1987-88 and 1989-90. The Assessee in the first five cases is one Smt. Saramma Joy, New Trades, Thukalassery, Thiruvalla. The Assessee in the last mentioned case is M/s Thomason Bottle, Muthoor, Thiruvalla. Both of them are dealers in empty bottles. They are Assessees on the files of the Sales Tax Officer-I, Thiruvalla. The Assessees purchased empty bottle from various sources and sold them to various industrial units for use as containers of finished products manufactured by them inside the State for sale. They obtained declaration in Form 18 from the purchasing dealers as contemplated u/s 5(7) of the Act. They collected and remitted tax only at the concessional rate on their turnover of sale of empty bottles to the industrial units. The assessment of Smt. Saramma Joy for the year 1983-84 was originally completed granting the benefit of concessional rate as provided u/s 5(7) of the Act accepting Form 18 declaration submitted by her. Subsequently, the said assessment was re-opened u/s 19 of the Act alleging that the empty bottles are not industrial raw materials or packing materials, but they are only containers as per explanation given under Sections 5(5) and 5(b) of the Act. According to the assessing authority empty bottles are nothing but glassware containers taxable at 10 per cent under the I Schedule to the Kerala General Sales Tax Act and therefore the concessional rate of tax allowed in the original order of assessment is a mistake apparent on the face of the records. Similarly, for the assessment years 1984-85 to 1987-88 and in the case of M/s Thomason Bottle for the assessment year 1989-90, the assessing authority took the same view. Notwithstanding the valid objections raised by the Petitioners, the assessing authority completed the assessment for all the years treating it as glassware containers taxable at 10 per cent.

The Assessees took up the matter in appeals before the Appellate Assistant Commissioner of Agricultural Income Tax and Sales Tax, Kottayam, who dismissed the said appeals. In second appeals, Sales Tax Appellate Tribunal, Thiruvananthapuram rejected the contention of the Petitioners that empty bottles are packing materials and that they are entitled to the concessional rates provided u/s 5(7) of the Act. The Sales Tax Appellate Tribunal accepted the alternate contention of the Assessees that empty bottles are unclassified item and therefore it is taxable only at the general rate, since this Court in Deputy Commissioner, Sales Tax v. Ummul Kulsu 1991 (2) KLT 164 has taken such a view. It is necessary to point out at this juncture that it would appear from the common order of the Tribunal for the assessment years 1983-84 and 1987-88 that the only contention taken by the Petitioner, namely; Smt. Saramma Joy before the Tribunal for those years was that empty bottles cannot be assessed as glassware containers at 10 per cent and that it can be assessed at the general rate in view of the decision of this Court in 1991 (2) KLT 164. But we find that the Assessee has taken up the ground that empty bottles are ''packing materials'' in the grounds of appeal before the Tribunal. It is against these orders of the Sales Tax Appellate Tribunal, Thiruvananthapuram that the Assessees have filed these tax revision cases.

Learned Counsel appearing for the Petitioners submitted that the Tribunal and the authorities below erred in rejecting the contention of the Petitioners that empty bottles sold by them are ''packing materials'' and therefore the said turnover is entitled to the concessional rate of tax as provided u/s 5(7) of the Act. He submitted that these empty bottles were sold by the Petitioners to industrial units for packing their finished products manufactured inside the State for sale and the purchasing dealers had issued Form 18 declarations contemplated u/s 5(7) of the Act. The learned Counsel submitted that empty bottles are nothing but packing materials and that the nature of the packing material will depend on the nature of the goods to be packed. If the goods to be packed are liquid articles then the nature of the packing materials can only be in the forms of containers whereas for carrying solid articles it will be in the forms of gunny bags, wooden cases, etc. Because the packing material used is empty bottles which are containers of liquid articles, learned Counsel submitted, it will not be taken out of the term ''packing material'' used in Section 5(7) of the Act. Learned Counsel in support of his contention relied on the decision of the Supreme Court in Lt. Governor v. Ganesh Flour Mills Co. Ltd. (1973) 31 S.T.C. 354 and the decision of this Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Thomas Varghese and Ors. (1996) 103 S.T.C. 177 and also the decision in Padinjarekkara Agencies Ltd. v. Asst. Commissioner 1996 (2) KLT 641. He has also relied on a decision of the Madhya Pradesh High Court in United Excise v. Commissioner of Sales Tax, M.P., Indore and Anr. (1971) 28 S.T.C. 16.

Learned Counsel for the Petitioners further pointed out that the legislature substituted the I Schedule to the Act by the Kerala Finance Act, 1992 published in Kerala Gazette Ex. 896, dated 29th July 1992 with effect from 1st April 1992 and in that Schedule item No. 91 is ''packing cases'' and ''packing materials'' including cork, cork sheet, gunny bags, shooks, tea chests, waste paper, wooden boxes, wooden shavings, wooden crates, wooden cable, drum or other materials notified by Government in this behalf. Explanation to item No. 91 also says planks, panels and battens when assembled will form tea chest or packing case will come under packing cases for the purpose of this entry. He also referred to notification S.R.O. 375/92 issued by the Government u/s 10 of the Act, wherein the Government after referring to S.R.O. Nos. 241 of 1991 and 284 of 1992, in the public interest notified, inter alia, that bottles made of glass or other materials, are packing materials for the purpose of Entry 91 of the I Schedule to the said Act. According to him, Entry 91 coupled with the Notification though it is prospective in operation clearly manifests that the legislative intention is to treat empty bottles also as packing materials. Learned Counsel accordingly submitted that the Appellate Tribunal and the authorities committed a very serious error in holding that empty bottles sold by the Petitioners cannot be treated as packing materials for the purpose of concessional rate of tax u/s 5(7) of the Act. Learned Special Government Pleader appearing for the State, on the other hand, submitted that empty bottles can never be treated as ''packing materials'', for the expression ''packing materials'' clearly shows that it is meant only for packing solid articles and when so understood, bottles which ate used as containers of liquids can never be understood as a packing material. According to him, glass bottles are only containers of liquids and that neither in common parlance nor in commercial sense, they can be classified as ''packing materials''. It is submitted that glass bottles available in various types and measurements are mainly used to keep different items of liquid foods, medicines, liquors, etc. They are only containers of liquids and can never be considered as packing materials. The learned Special Government Pleader (Taxes) further submitted that legislature itself has treated ''containers'' and ''packing materials'' differently is evident from various Sub-sections of Section 5 itself. The Sales Tax Appellate Tribunal according to him was perfectly justified in holding that ''empty bottles'' are not packing materials.

We have considered the matter. Petitioners are dealers in empty bottles. They purchased empty bottles from various sources and sold them to industrial units for using them as containers of goods manufactured by those industrial units. The Petitioners have obtained Form 18 declaration as contemplated u/s 5(7) of the Act based on which they collected tax only at the rate of 4 per cent from the customers. These facts are not disputed by the assessing authority. The only contention taken by the assessing authority, as already stated, is that empty bottles are containers and they cannot be treated as ''packing materials''. Concessional rate is available u/s 5(7) of the Act only in respect of industrial raw materials and packing materials. So the only question to be considered is as to whether ''empty bottles'' sold by the Petitioners can be treated as ''packing materials'' for the purpose of Section 5(7) of the Act. Section 5(7) was inserted in the Act by Amendment Act 3 of 1983 with effect from 14th October 1982 and the same was omitted by the Kerala Finance Act, 1987 (Act 18 of 1987) with effect from 1st July 1987. Section 5(7) of the Act as inserted with effect from 14th October 1982 reads as follows:

(7) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), the tax payable by a dealer in respect of any sale of industrial raw materials or packing materials, which is liable to tax at a rate higher than four per cent, when sold to industrial units for use in the production of finished products inside the State for sale or for packing of such finished products inside the State for sale, as the case may be, shall be at the rate of only four per cent on the taxable turnover relating to such industrial raw materials or packing materials, as the case may be:

Provided that this Sub-section shall not apply where the sale of such finished products is not liable to tax either under this Act or under the Central Sales Tax Act, 1956 (Central Act 74 of 1956) or when such finished products are exported out of the territory of India:

Provided further that the provisions of this Sub-section shall not apply to any sale unless the dealer selling the goods furnishes to the assessing authority in the prescribed manner a declaration duly filled in and signed by the dealer to whom the goods are sold, containing the prescribed particulars in the prescribed form.

Simultaneously with the omission of Section 5(7), Section 5(3) was amended by the Kerala Finance Act, 1987 with effect from 1st July 1987. The relevant portion of amended Section 5(3) reads as follows:

(3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), the tax payable by a dealer in respect of any sale of industrial raw materials, component parts or packing materials which is liable to tax at a rate higher than two per cent when sold to industrial units for use in the production of finished products inside the State for sale or for packing of such finished products inside the State for sale, as the case may be, shall be at the rate of only two per cent on the taxable turnover relating to such industrial raw materials, component parts, or packing materials, as the case may be.

By the Kerala Finance Act, 1990, the words ''component parts, containers or packing materials'' were substituted for the words ''component parts or packing materials'' used in Section 5(3) of the Act with effect from 1st April 1990.

Till 1st April 1992, ''packing material'' was not a specific item in any of the Schedules to the Act. It was specifically included as item No. 91 of the I Schedule, which was substituted by the Kerala Finance Act with effect from 1st April 1992. Item 91 of the I Schedule introduced with effect from 1st April 1992 reads as follows:

Packing cases and packing materials including cork, cork sheet, gunny bags, shooks, tea chests, waste paper, wooden boxes, wooden shavings, wooden crates, wooden cable, drum or other materials notified by Government in this behalf.

Explanation.-Planks, panels and battens when assembled will form tea chest or packing case will come under packing cases for the purpose of this entry.

Point of levy and rate of tax are shown as at the point of first sale in the State by a dealer who is liable to tax u/s 5 at 5 per cent.

Regarding packing materials the Government have issued a Notification S.R.O. No. 375/92 vide G.O. (P) No. 78/92/TD, dated 31st March 1992]. The said Notification reads as follows:

PACKING MATERIALS

S.R.O. No. 375/92.-In exercise of the powers conferred by Section 10 the Kerala General Sales Tax Act, 1963 (15 of 1963) and in supersession of the Notifications G.O. (P) No. 17/92/TD, dated the 18th January 1991 published as S.R.O. No. 241/91 in the Kerala Gazette Extraordinary No. 225 dated the 22nd February 1991 and G.O. (P) No. 42/92/TD, dated the 4th March 1992 published as S.R.O. No. 284/92 in the Kerala Gazette Extraordinary No. 294 dated the 9th March 1992, the Government of Kerala having considered it necessary in the public interest so to do, hereby notify the goods mentioned in the Schedule below as packing materials for the purpose of entry 91 of the First Schedule to the said Act, namely:

SCHEDULE

Bituminised materials used in packing of goods.

Bottles made of glass or any other materials.

Carton boxes, cones, cylinders or tubes made of paper, corrugate paper or cardboard paper, labels, paper cuttings.

Cellophane tapes.

Empty barrels and drums

Empty Tins

Jute Hessian cloth

Jute Twine

Packing cases including planks, rafters, battens which when assembled together from packing case

Palm leaf mats

Paper gum tapes

Plastic tapes

Polythene (Plastic) tins, bags and covers of all sizes and varieties

Rubber bands

Thermocol

Tin containers and tin seals

Wood wool

Pilfer proof caps

The relevant statutory provisions extracted above, would indicate that the provisions regarding concessional rate of tax for the years 1983-84 to 1989-90 contained in Section 5(7) and later in 5(3) are similar. It is clear from the provisions of Section 5(7) and 5(3) as it stood, during 1983-84 to 1989-90 that the sale turnover of ''empty bottles'' would qualify for concessional rate of tax only if it is treated as, ''packing materials''; of course subject to satisfying the other conditions of Section 5(7) of the Act.

In this context it would be profitable to refer to two other Sub-sections of Section 5 of the Act. They are Sub-sections (5) and (6) thereof, which read as follows:

(5) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), but subject to Sub-section (6), where goods sold are contained in containers or are packed in any packing materials, the rate of tax and the point of levy applicable to such containers or packing materials, as the case may be, shall, whether the price of the containers or the packing materials is charged separately or not be the same as those applicable to goods contained or packed and in determining turnover of the goods, the turnover in respect of the containers or packing materials shall be included therein.

Where the sale or purchase of goods contained in any containers or packed in any packing materials is exempt from tax, then, the sale or purchase of such containers or packing materials shall also be exempt from tax.

Explanation.- In Sub-section (5) and Sub-section (6), the word ''containers'' includes gunny bags, tins, bottles or any other containers.

Under Sub-section (5) of Section 5 of the Act, where goods are sold in containers or are packed in packing materials the rate of tax and the point of levy applicable to such containers or packing materials as the case may be shall be the same as those applicable to the goods contained or packed. In determining the turnover of the goods the turnover in respect of the containers or packing materials shall be included. The explanation thereto says that for the purposes of Sub-sections (5) and (6) the word ''container'' includes gunny bags, tins, bottles or other containers. Before proceeding to consider the question as to whether ''empty bottles'' can be treated as ''packing materials'' it is necessary to point out that the Supreme Court and this Court while dealing with the rate of tax on containers and ''packing materials'' in the context of the above Sub-sections and similar provisions understood bottles and other containers also as ''packing materials'' (Vide Deputy Commissioner of Sales Tax, Ernakulam v. Raja Oil Mills and Ors. (1979) 43 S.T.C. 78 (F.B.) and Raj Sheel and Ors. v. State of Andhra Pradesh and Ors. (1989) 74 S.T.C. 379. Similarly the Supreme Court while construing similar provisions in the Sales Tax Law of the other States had also understood ''bottles, tins, gunny bags, etc. as packing materials''. It must however be stated that in those cases the question as to whether bottles, tins, gunny bags, etc. are packing materials did not arise directly for consideration. However, those decisions will indicate the general understanding of the words ''packing materials'' as including containers of liquid articles also.

The question as to whether ''containers'' are ''packing materials'' in a way directly came up for consideration before the Supreme Court in Lt. Governor v. Ganesh Flour Mills Co. Ltd. (1973) 31 S.T.C. 354. This was an appeal from the decision of the High Court of Delhi in The Ganesh Flour Mills Co. Ltd. v. The Chief Commissioner, Delhi and Ors. (1968) 22 S.T.C. 264. The question arose in that case was as to whether the expression "containers or materials intended for being used for the packing of goods for sale" in Clause (c) of Sub-section (3) of Section 8 of the Central Sales Tax Act, 1956, has been deliberately couched in a language which brings within its sweep all kinds of ready-made receptacles or other materials which are intended or by a slight alteration or fabrication can be converted into such receptacles for the purpose of storage of goods provided the use to which those receptacles are ultimately put by the dealer is not to sell them as independent articles of sale as such, but as receptacles for storage or transportation of goods contained therein for sale. The Petitioner, therein was a manufacturer of, and dealer in, vegetable oil products. It buys "tin sheets" from the dealers from Bihar and elsewhere, converts them into "tin containers" which it fills with vegetable oil products and sells them to different parties. Apparently it also buys empty tins and drums and sells them, as those items are also mentioned in the column for resale in the certificate of registration issued to it. The Petitioner wanted the words ''tin sheets'' and ''tin plates'' to be added to the registration certificate under the appropriate heading of materials for packing of goods for sale. In order to get the same included in the registration certificate, the Petitioner has shown that the goods sought to be added to the registration certificate come within the category of goods referred to in Clause (b), (c) or (d) of Sub-section (3) of Section 8 of the Central Sales Tax Act. A contention was taken that ''tin plate'' is obviously used for the manufacture of containers and the oil is contained in those tin containers, and therefore the expression "materials intended for being used for the packing of goods for sale" can only mean those materials in which the goods to be sold are merely wrapped and is in the context to be confined to wrapping of solid goods. In that context, the Delhi High Court referred to the meaning of the words "container and packing" and observed as follows: "The word "container" as defined generally by the Century Dictionary means one who or that which contains. In one of the American Statutes the word was defined to include a wrapper (see Corpus Juris Secundum, Volume 16-A, page 1250). Similarly the word "packing" includes the act or process of one who or that which packs. It also means any material used to pack, fill up or make close (see Corpus Juris Secundum, Volume 67, page 550). The word "container" is not confined merely to receptacle for storing liquid as was attempted to be argued by the learned Counsel for the Respondents. In a Treated on words and Phrases, published by the West Publishing Co. of America, there is a reference to the word "container" being used in one of the New York Statutes for boxes in which apples were bought by weight, and were to be weighed by the purchaser, or some one approved by him and not with relation to anything stamped upon the boxes in which they were contained. The boxes were merely "containers" within General Business Law.

The Oxford English Dictionary gives the meaning of the word "container" as he or that which contains, while the meaning of the word "packing" is the putting of hings together compactly, as for transport, preservation, or sale; the filling of receptacle with things so put in. Another meaning given to it is "any material used to fill up a space or interstice closely or tightly filling, stuffing.

Webster''s New International Dictionary (second edition) gives the meaning of the word "packing" as an act or process of one who or that which packs especially the putting up of meat, fruit, etc. for future sale or any materials used to pack, fill up or make close.

On the basis of the aforesaid meanings of the words "containers" and "packing", the Delhi High Court observed that it is apparent that neither the word "container" is confined to liquids only nor is the words "materials for packing" restricted to wrappers to be used as a covering for solid goods. The expression "containers or materials intended for being used for the packing of goods for sale" as used in Clause (c) of Sub-section (3) appears to have been deliberately couched in a language which brings within its sweep all kinds of ready-made receptacles or other materials which are intended or by a slight alteration or fabrication can be converted into such receptacles for the purpose of storage of goods provided the use to which those receptacles are ultimately put by the dealer is not to sell them as independent articles of sale as such, but as receptacles for storage or transportation of goods contained therein for sale.

The Supreme Court affirmed the view taken by the Delhi High Court. In that, the Supreme Court observed as follows:

We are also of the view that packing materials are necessary not only for solid articles but also for those in liquid and semi-liquid form. According to observation on page 22 of Encyclopaedia Britannica, Vol. 17, 1968 Edition, in a society that produces foodstuffs and manufactured articles in one locality and uses them in another, a wrapping or container is necessary during storage, transport and sale. The functions of a package are: (1) to contain in a convenient-sized unit or amount of a product; (2) to protect it in transit; (3) to aid its safe delivery to the consumer; and (4) in some cases to display the product and promote its sale or to act as a dispenser of it. Originally instituted to produce simple containers, the packaging industry has expanded to meet the demands for processed and preserved foods, father than seasonal crops, and to distribute increased varieties of manufactured items. Packaging reflects developments in other industries, especially petrochemicals and plastics, whereby new materials and methods of construction have been provided for containers. It has further been observed that cans, both tin and aluminium, are now used for ready-cooked products, brewery products, soft drinks, and many oils and semi-solids. Where a reclosable pack is needed, lever-lid or slip-lid cans are used instead of sealed cans.

In Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Thomas Varghese and Ors. (1996) 103 S.T.C. 177 the Respondent therein, who was a dealer in empty bottles was given the concessional rate of tax on empty bottles treating it as packing materials within the meaning of Section 5(7) of the Kerala General Sales Tax Act, 1963 accepting the Form 18 declaration. The assessing authority thereafter reopened the assessment and held that Section 5(7) of the Act did not apply as the bottles were not packing materials. The first Appellate Authority and the Tribunal set aside the re-assessment holding that no case of turnover escaping assessment had been made out, and that the Respondent''s case fulfilled the requirements of Section 5(7) of the Act. This Court dismissed the tax revision case filed by the Deputy Commissioner of Sales Tax against the said orders holding that the reopening of the assessment was without jurisdiction by reason of absence of satisfaction of the requirements of Section 19 of the Act. This decision is of no assistance in this case as the question raised here has not been decided there.

In Padinjdrekkdra Agencies Ltd. v. Assistant Commissioner 1996 (2) KLT 641 one of us (K.K. Usha, J.) had occasion, incidentally, to consider whether the Petitioner therein is entitled to the benefit of lesser rate of tax as regards the empty drums purchased for the purpose of storing and marketing centrifuged latex u/s 5(7) of the Act. On this question it was observed as follows:

Respondent has no case that the drums were purchased by the Petitioner not for the purpose of storing the centrifuged latex concentrate. Therefore, the Petitioner was perfectly justified in issuing Form No. 18 declarations claiming that the drums were for marketing the finished products and therefore, entitled to the benefit of lesser rate of tax u/s 5(7) of the Kerala General Sales Tax Act.

The Madhya Pradesh High Court had occasion to consider the question as to whether the sale of corks or capsules, the ceiling asphalt or wax used, the labels attached to the bottles, etc. as packing material. In that context, it is observed that "the main packing material is the bottle which is neither taxable nor is sold, and the cork, the capsule, the sealing wax and the label, etc. are merely attached to the bottle, and are not separately of any use, and in that view of the matter, it was held that no sales tax was chargeable upon the packing material used in the process of bottling".

It is also relevant to note that packing material was not included as a specific item in any of the schedules to the Act till 1st April 1992. For the first time packing material was included as an item-item No. 91 in the first Schedule to the Act by the Finance Act with effect from 1st April 1992. That item which has already been extracted in this judgment is made taxable at the point of first sale in the State by a dealer, who is liable to tax u/s 5 at 5 per cent. In this context it is also relevant to note that u/s 5(5) of the Act in cases where goods sold are contained in containers or are packed in any packing materials, the rate of tax on such containers or packing materials be the same as those applicable to goods contained or packed. Item 91 itself refers to packing cases and packing materials including gunny bags, tea chests, wooden boxes, etc. Further the notification issued by Government as contemplated under item 91 S.R.O. No. 375/92 notified inter alia, bottles made of glass or any other materials as packing materials for the purpose of item 91 of the I Schedule to the said Act. This itself shows that the Government also understood packing materials as including empty bottles and other containers used for packing liquid articles.

In view of the decision of the Supreme Court in Lt. Governor v. Ganesh Flour Mills Co. Ltd. (1973) 31 S.T.C. 354 and the other decisions discussed supra and also the understanding of the content of the term packing material by the Government contained in item 91 of the I Schedule to the Act and the notification issued thereunder we are of the view that empty bottles are packing materials in relation to packing of liquid articles and the sales of empty bottles are entitled to the concessional rate of tax provided u/s 5(7) of the Act provided the other conditions of the said section are satisfied. In these cases, there is no dispute regarding the compliance of the other conditions of Section 5(7) of the Act.

In the light of the above, we hold that the Sales Tax Appellate Tribunal and the authorities below were not justified in denying the concessional rate of tax u/s 5(7) of the Act claimed by the Petitioners in these cases. We set aside the orders passed by the Tribunal and by the authorities which are challenged in these cases. Further we direct the assessing authority to pass fresh orders allowing concessional rate u/s 5(7) of the Act claimed by the Petitioners and complete the assessment accordingly.

The tax revision cases are disposed of as above. There will be no order as to costs.