JUDGMENT

SABYASACHI MUKHARJI, J.:— This is an appeal by leave from the judgment and order of the High Court of Allahabad, dated 12th July, 1982.* The decision was rendered in a revision by the assessee which was directed against the order of the Sales Tax Tribunal. The year involved is the assessment year 1974-75.

* Reported in (1982) 5 STL 233.

2. The assessee carried on the business of mining and sale of silica sand. The question was whether the sales tax could be charged from the assessee in respect of packing charges received by the assessee from the purchaser. The sales tax authorities as well as the Tribunal held that the assessee was liable to pay sales tax on the packing charges that he had received from the purchaser. From the facts found by the Tribunal it appears that there was a contract for packing the silica sand in gunny bags and packing charges had been realised on the basis of mt. tons though these were separately shown and were added up with the price of the silica sand and on the total sales tax was charged.

3. Section 2(h) of the Central Sales Tax Act, 1956 (hereinafter called the Act) provides as follows :-

" "sale price" means the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in cases where such cost is separately charged."

4. The Tribunal categorically found that there was a contract for packing the silica sand in sound gunny bags, hence, held that there was an implied agreement for sending silica in gunny bags though these could be sent loose in wagons. As mentioned hereinbefore, S. 2(h) contemplates sale price as the consideration for the sale of any goods unless any sum allowed as cash discount according to the practice prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in cases where such cost is separately charged. Hence, the short question is whether the price was charged for anything done in respect of the goods at the time of or before the delivery thereof.

5. The Tribunal also found that packing was done at the request of the buyer and that it was a convenient mode of delivery. The buyers had given directions for the quality of packing and it appears from the order form and this all was done in respect of the goods for putting these in deliverable state and so the packing charges, according to the Tribunal, are exigible to tax in this case. The Tribunal clearly came to the conclusion that all these expenses were incurred in order to put the goods in deliverable state prior to their delivery. As per the agreement these expenses were rightly included in the sale price and it could not be said that these were not part of the sale price. Hence, the Tribunal held that the tax was rightly levied under the Act on the sale price so computed.

6. The High Court came to the conclusion that the Tribunal had not recorded the finding that there was an implied agreement to sell the gunny bags by the assessee to its customers. Packing charges were not mentioned and neither the cost of gunny bags. Packing charges for each metric ton obviously includes labour charges. In view of the fact that the price of goods and the packing charges were separately charged, the High, Court came to the conclusion that the packing charges could not be included in the sale price paid by the purchasers to the assessee. That is impugned in this appeal.

7. We are of the opinion, in view of the facts found by the Tribunal which must be taken to be conclusive, and in the light of S. 2(h) of the Act, the High Court was in error. In the facts