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State of Punjab v. M/s Hindustan Petroleum Ltd., Suchi Pind - GSTR-6-1997  RD-P&H 8859 (18 October 2006)
G.S.T.R. No.6 of 1997
Date of Decision:18.10.2006
State of Punjab
M/s Hindustan Petroleum Ltd., Suchi Pind, Jalandhar
CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE RAJESH BINDAL
Present:- Shri Amol Rattan, Addl. AG, Punjab.
RAJESH BINDAL, J.
The following questions of law have been referred for opinion of this Court by Sales Tax Tribunal, Punjab (for short, `the Tribunal') arising out of its common order dated 29.05.1996 passed in Appeals No. 4, 6, 7 and 8 of 1995-96 (relating to years 1986-87, 1988-89, 1991-92 & 1993- 94), Misc. (Rect) Nos.13, 15, 17 & 19 of 1995-96 (relating to assessment years 1987-88, 1989-90, 1990-91 & 1992-93), and Misc. (Rect) Nos.236 & 237 of 1994-95 (relating to assessment years 1984-85 & 1985-86):- "(a) Whether the Hon'ble Tribunal was correct in law in following the judgment of the Hon'ble Supreme Court of India reported in 96-STC-642 and in creating distriction in judgment of Supreme Court of India reported 35 ITR-519 where in the transfer of bottles against securities deposits has been held as transactions of sale? On this anology, whether the transaction of supply of cylinder and pressure regulators against security to the consumer are covered by definition of sale? b) Whether on the facts and circumstances of the case, the General Sales Tax Reference No.23 of 1985 of the Punjab and Haryana High Court (DB) in the case of M/s Punjab Breweries Ltd. Versus State of Punjab reported as 90 STC-211 is applicable in the instant case, holding that the present transaction in question amounts to sale? c) Whether the Hon'ble Tribunal has correctly interpreted vide its order dated 29.5.1996, the provision of Punjab General Sales Tax Act, 1948 read with section 19(1) and Section 14.8 of the Sale of Goods Act 1920 and the provision of cylinder Rule 1981 and having regard to the terms and conditions of agreement between the respondent and customer? d) Whether the Hon'ble Tribunal was correct in law in holding that the security deposited collected from the L.P.G. Customers is not part of sale turnover and not exigible to levy of sales tax under the Punjab General Sales Tax Act, 1948? e) Whether the Hon'ble Tribunal was correct in law in holding that the decision of the Hon'ble Supreme Court reported as 96- STC-642 actually changed the situation and was sufficient ground for the rectification of mistake, when Hon'ble Tribunal in order dated 27.4.1994 which now stand rectified, has already recorded specific finding that in view of the facts and circumstances of the case, the consumer was under no obligation to return the cylinder to the respondent because the agreement being relied by return of cylinder and pressure regulators and created no liability on the customer to return the same within a stipulated period?"
Brief facts as have been noticed in the statement of case are that the Respondent- assessee, a registered dealer under Sales Tax Laws, is a Central Government undertaking and engaged in the resales of Petroleum Products and insecticides/finits including L.P.G. Cylinders marketed by it through various distributors. Assessing Authority, Jalandhar framed assessments of the respondent Corporation for the years 1984-85, 1985-86, 1986-87 on 20.9.1989, 9.1.1990, 27.3.1991 respectively and created additional demand of Rs.8,52,128/- Rs.3,47,776/- and Rs.39,228/- for the respective years. The Assessing Authority, Jalandhar treated the supply of cylinders and pressure regulators as a sale. Against these orders, the respondent-assessee filed appeals before Deputy Excise and Taxation Commissioner(A) Jalandhar which were dismissed by him on 13.10.1993.
Against the order of Deputy Excise and Taxation Commissioner (A), the respondent-assessee filed appeals before the Tribunal which were dismissed by the Tribunal on 27.4.1994 relating to the assessment year 1984-85and 1985-86. Rectification applications filed by the respondent Corporation for the year 1984-85 and 1985-86 were accepted by the Tribunal and earlier order for the year 1984-85 and 1985-86 were rectified and appeal for the year 1986-87 which was lying pending before the Tribunal was accepted vide order dated 29.5.1996.
Present proceedings arise out of orders of the Tribunal referred to above. The Tribunal has further referred to pendency of CWP Nos.8013 of 1995 and 7913 to 7916 of 1995 filed by Indian Oil Corporation involving similar issues while referring above questions of law for opinion of this Court.
It could not be disputed before us that the issue involved in the present reference has already been gone into by a Division Bench of this Court in Indian Oil Corporation Ltd. Vs. Excise and Taxation Officer, Ambala Cantt. Ambala and others, (2000) 117 STC 333, wherein on a consideration of identical facts, it was held that no sales tax is exigible on the amount of refundable security deposits received from customers against cylinders/ regulators at the time of release/sanction of connection as the sales are only a mode of carrying gas. The writ petitions in the case of Indian Oil Corporation, relying upon the pendency of which, questions of law were referred to this Court for opinion, have also been decided by this Court in favour of Indian Oil Corporation vide judgment dated 8.1.1999.
For the reasons stated in Indian Oil Corporation's Case (Supra), we answer the question against the Revenue and in favour of the assessee while holding that no sales tax is exigible on the amount of refundable security deposits received from customers against cylinders/ regulators at the time of release/sanction of connection as the same are only a mode of carrying gas.
The Reference is disposed of accordingly.
( RAJESH BINDAL )
October 18, 2006 ( ADARSH KUMAR GOEL )
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