The rate of tax applicable to the sale of packing materials under section 15A of the Bombay Sales Tax Act, 1959, is the rate which is actually applicable to sales of goods in a given case, and not the rate at which such goods are "generally" subjected to tax.

The judgment of the Court was delivered by

DR. B. P. SARAF, J. - By this reference under section 61(1) of the Bombay Sales Tax Act, 1959, made at the instance of the assessee, the Maharashtra Sales Tax Tribunal has referred the following question of law to this Court for opinion :

"Whether, on a true and correct interpretation of section 15A of the Bombay Sales Tax Act, 1959, the Tribunal was correct in its conclusion that sales tax was payable on the tins purchased from unregistered dealers in which oil purchased from registered dealers was packed and sold ?"

2. It is obvious from the above question that the controversy involved in this reference is in a narrow compass and the determination of the same depends on the construction of section 15A of the Bombay Sales Tax Act, 1959 ("the Act"). The material facts giving rise to this reference, briefly stated, are as follows :

The assessee is a dealer in oil. He purchased oil from registered dealers within the State of Maharashtra as also from other sources. During the period from November 8, 1980 to October 27, 1981, to which this reference relates, the assessee purchased empty tins from unregistered dealers which were used for packing of the oil purchased by it from the registered dealers. The assessee was assessed under the Act for the above period by the Assistant Commissioner of Sales Tax (Assessment), Bombay, by his order of assessment dated July 30, 1984. In the above order of assessment, the Assistant Commissioner determined the taxable sales of tins by adding gross profits to the value of the purchase of empty tins from unregistered dealers to the extent of Rs. 7,21,673 and levied tax thereon at the rate of 4 per cent which was the rate applicable to sales of oil within the State at the material time. The assessee was aggrieved by the levy of sales tax at the rate of 4 per cent on the value of tins supplied by its along with the oil at the rate of four per cent, as according to it, no sales tax was leviable on the sales of oil effected by it and that being so, no tax could be levied on the value of tins also which were used as containers for packing such oil. The assessee, therefore, appealed to the Deputy Commissioner of Sales Tax (Appeals). The Deputy Commissioner allowed the appeal of the assessee and set aside the levy of sales tax at the rate of four per cent on the sale value of tins estimated by the Assistant Commissioner (Assessment). Subsequently, the Additional Commissioner of Sale Tax initiated proceedings for suo motu revision under section 57(1)(a) of the Act and revised the appellate order of the Deputy Commissioner and restored original order of the Assistant Commissioner (Assessment). This he did as he was of the opinion that on a proper interpretation of section 15A of the Act, sales tax was leviable on the value of tins at the rate of four per cent at which the sales and purchases of oil were "generally" subjected to tax under the Act. Aggrieved by the order passed by the Additional Commissioner of Sales Tax on suo motu revision, the assessee appealed to the Maharashtra Sales Tax Tribunal ("the Tribunal"). It was contended by the assessee before the Tribunal that under section 15A of the Act, sales of tins used by the assessee in packing of oil sold by it was not liable to any tax because the rate of tax on the sales of oil effected by the assessee was nil in the instant case. The case of the assessee, in other words, was that the containers cannot be taxed in the hands of the dealer at a rate different from the one at which the contents are taxed. This contention of the assessee did not find favour with the Tribunal. The Tribunal was of the opinion that by virtue of section 15A of the Act, sales of containers would be taxable at the rate applicable to the sales of the contents, by the assessee in the given case. The Tribunal, therefore, dismissed the appeal of the assessee. Hence this reference at the instance of the assessee.

3. Section 15A of