Judgment

B. P. JEEVAN REDDY, J.:- Common questions arise in this group of civil appeals, for which reason they were heard together and are being disposed of under a common judgment. The judgments under appeal were rendered on references made under S. 61(2) of the Bombay Sales Tax Act, 1959. The High Court has answered the questions referred against the appellants-dealers and in favour of the revenue. Hence, these appeals by them. Since the facts in all the appeals are identical, it is sufficient if we refer to the facts in Civil Appeal No. 803 (N.T.) of 1977 (Cadbury Fry (India) Pvt. Ltd. v. Commissioner of Sales Tax and another).

2. In Civil Appeal No.803/77,the following two questions were referred for the opinion of the High Court under S. 61 (2) of the Act :

"(i) Whether on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that for the purpose of reducing set-off under clause (iii) of the Proviso to Explanation to Rule 41 of the Bombay Sales Tax Rules, 1959, one per cent., should be calculated not on the entire sale price of the goods despatched by the appellants to their branches, but only on that part of the sale price of the goods sold outside the State which is attributable to the locally purchased raw material on which the appellants were claiming set-off.

(ii) Whether on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that for the purpose of reducing set-off under clause (iii) of the Proviso to Explanation to Rule 41 and clause (y) of the proviso to the Explanation to Rule 41A of the Bombay Sales Tax Rules, 1959, one per cent. should be calculated not on the entire sale price of the goods despatched by the appellants to his branches, but only on the part of the sale price of the goods sold outside the State which is attributable to the locally purchased raw material on which the appellants were claiming set-off."

3. The appellant, a registered dealer under the Act, is engaged in the manufacture of various products such as chocolate, drinking chocolate, cocoa etc. During the assessment years concerned herein, it purchased raw material, packing material and containers both within the State of Maharashtra as well as outside. In respect of the raw material, packing material etc. purchased from registered dealers the appellant paid purchase tax to them. In so far as such raw material etc. was purchased from Unregistered dealers, the appellant was liable to and did pay the purchase tax directly to the Government. The goods manufactured by the appellant are liable to sales tax when sold within the State.

4. In exercise of the Rule-making power conferred by S. 74 of the Act, Rules have been made by the Government of Bombay. We are concerned in this case with only two rules namely 41 and 41A. The purport of both the Rules, in so far as it is relevant for the purposes of these appeals is concerned, is practically the same notwithstanding a good amount of phraseological difference between them. Rule 41 applies in respect of purchases made by a manufacturing dealer like the appellant up to 15th July, 1962. From this date onwards, it is Rule 41 A that operates. In respect of their assessment for the period January 1st, 1960 to December 31, 1960 the appellant (manufacturing dealer) claimed setoff under Rule 41 whereas for the period January 1st, 1962 to December 31st, 1962 he claimed it under Rule 41 A.

5. Rules 41 and 41-A provide for setoff of the purchase tax paid by the manufacturing dealer on the raw material, packing material etc. as against the sales tax payable on the sale of the goods manufactured by him. It would be appropriate at this stage to read both these rules, in so far as they are relevant for our purpose:

"41. Drawback, set-off, etc. of tax paid by a manufacturer (In respect of purchases up to 15-6-62). In assessing the amount of tax payable in respect of any period by a Registered Dealer, who manufactures taxable goods for sale (herein