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Messrs Prag Ice Oil Mills v. Commissioner Of Trade Tax, U.P. Lko. - SALES/TRADE TAX REVISION DEFECTIVE No. 200 of 2000  RD-AH 4673 (16 March 2007)
TRADE TAX REVISION NO.(200) OF 2000
TRADE TAX REVISION NO.(201) OF 2000
TRADE TAX REVISION NO.1476 OF 2000
M/s Prag Ice Oil Mi..s, Aligarh. ....Applicant
Commissioner, Trade Tax, U.P., Lucknow. .Opp.party
Hon'ble Rajes Kumar, J.
These three revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 01.08.2000 relating to the assessment years 1974-75 75-76 and 76-77.
Applicant was carrying on the business of manufacture and sale of edible oil. It is claimed that the edible oil was sold in tin containers. Tin containers were purchased within the State of U.P. In the bill, value of the oil and value of the tin containers had been separately shown and the tax liability had been admitted only on the turn over of edible oil and no tax liability had been admitted on the turn over of tin containers on the ground that the tin containers were purchased within the State of U.P. While passing the original assessment orders assessing authority accepted the claim and had levied the tax only on the value of the oil. Assessing authority thereafter, passed the order under section 21 of the Act and levied the tax on the value of tin containers on the ground that it was part of the turn over of oil relying upon the decision of this Court in the case of CST Vs. Tika Ram And Sons (P) Ltd., reported in 1980 STD, 426. Order of the assessing authority has been upheld in first appeals and by the Tribunal in second appeals.
Heard learned counsel for the parties.
Learned counsel for the applicant submitted that the issue involved in the present revision is squarely covered by the decision of this Court in the case of assessee itself, Commissioner of Trade Tax Vs. Prag Ice And Oil Mills, Aligarh, reported in (2006) 4, VLJ, 7 and the decision of this Court in the case of Commissioner of Trade Tax, U.P., Lucknow Vs. S/S Malook Chandra Cotton and Oil Mill, Aligarh, reported in 2005 NTN (Vol.26), 477, Commissioner of Trade Tax Vs. S/s Raghubar (India) Ltd., Rasalganj, Aligarh, reported in 2005 UPTC, 758.
I find substance in the argument of learned counsel for the applicant. There is no dispute that separate price for tin containers were charged in the bills. This shows that there was a separate stipulation for the tin containers. Tin containers is an independent commercial commodity and under the Entry "Containers made of tin, iron or steel" under notification no.ST-II-5785/X-19(1)-80-U.P. Act XV/48-Order-81, dated 07.09.1981 is liable to tax @ 4% at the point of manufacturer or importer.
In the case of M/S Jamana Flour & Oil Mills (P) Ltd. Vs. Commissioner of Sales Tax, reported in 1987 UPTC, 861, it has been held by the Apex Court that if there is separate contract implied or express for the containers/packing material they are liable to tax at the rate applicable to it.
Similar view has been taken by this Court in the case Commissioner of Trade Tax Vs. S/s Raghubar (India) Ltd., Rasalganj, Aligarh (Supra) following the aforesaid decision of the Apex Court in the case of M/S Jamana Flour & Oil Mills (P) Ltd. Vs. Commissioner of Sales Tax (Supra).
In the case of assessee itself, Commissioner of Trade Tax, U.P., Lucknow Vs. Prag Ice And Oil Mills, Aligarh (Supra) this Court held as follows:
"Issue no.'a' qua the taxability of Tin Container is concerned the same is no more res integra inasmuch as this Court in the case reported in 2005 NTN Vol.26 page 477 Commissioner of Trade Tax Vs. Maluk Chand Cotton & Oil Mill, Aligarh has specifically held that the tin containers were separately liable to tax and since the purchase has been made by the assessee within the State of U.P., there is no liability of any tax being assessed in respect thereto. In view of the aforesaid the order passed by the Trade Tax Tribunal in respect of above issue is affirmed."
Since the tin containers were purchased within the State of U.P. and --was liable to tax at the point of manufacturer or importer and the applicant being neither manufacturer or importer turn over of tin containers is not liable to tax.
In the result, all the revisions are allowed. Order of the Tribunal is set aside.
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