The identity of the goods is often based upon the use of the commodity.

JUDGMENT

R. N. MISRA, J. - This is a reference under section 24(3) of the Orissa Sales Tax Act (hereinafter referred to as the Act). This court called upon the Tribunal to refer to the following question of law and state a case for determination of the said question :

"Whether the proviso to section 5(2)(A)(a)(ii) has been violated by sale of mung and chana in the shape of mung dal and besan ?"

2. The assessee is a registered dealer bearing No. CUI 1318. When he came to be assessed for the quarter ending 30th June, 1963, the Sales Tax Officer found that the petitioner had purchased mung, chana, biri and peas by giving declaration as required under the Act that he would resell such goods in the State of Orissa and had thus been exempted from payment of sales tax. Subsequently, he converted some mung and biri to dal. Similarly, he converted chana and peas to besan. To the extent the assessee converted the goods purchased on the basis of declaration into either dal or besan the assessing officer took action under the proviso to section 5(2)(A)(a)(ii) of the Act and raised demand. The assessee disputed the demand in appeal. From the appellate order it transpires that similar demands had been raised against the assessee for four quarters at a time being quarters ending 30th June, 1963, 30th September, 1963, 31st December, 1963, and 31st March, 1964. The assessee has, however, confined his challenge to the quarter ending 30th June, 1963, in this case.

3. The Assistant Commissioner as also the Sales Tax Tribunal upheld the assessment by holding that the assessee had attracted the liability under the proviso to section 5(2)(A)(a)(ii) of the Act and the demand was, therefore, justified.

4. Section 5(2)(A) of the Act deals with "taxable turnover". "Taxable turnover" is said to mean -

"A dealer's gross turnover during any period which remains after deducting therefrom :

(a) his turnover during that period on -

(i) the sale of any goods notified from time to time as tax-free under section 6 and of the packing materials, if any, in respect of such goods.

(ii) sales to a registered dealer of goods specified in the purchasing dealer's certificate of registration as being intended for resale by him in Orissa and on sales to a registered dealer of containers or other materials for the packing of such goods."

The proviso is to the following effect :

"Provided that when such goods are used by the registered dealer for purposes other than those specified in his certificate of registration, the price of goods so utilised shall be included in his taxable turnover."

Under rule 27(2) a statutory form has been prescribed. A claim laid for deduction has to be evidenced by a declaration in such form.

5. To answer the question called for all that is necessary to be determined is whether there has been a violation in the declaration of the assessee that the goods purchased by him for resale in Orissa have really been so resold. A single point taxation system has been adopted under the Orissa Sales Tax Act. The point of taxability is open to be fixed under section 8 of the Act. Ordinarily, that point is postponed until in a series of sales the goods ultimately passes to a consumer or to an unregistered dealer. The method of obtaining a declaration as referred to above and postponing the point of taxability is the method adopted under the Act to give effect to the single point of taxation. It the assessee, who has given the declaration and has become entitled to deduction in respect of the goods covered by the declaration from his taxable turnover, does not violate the terms of the declaration, no liability accrues against him in regard to the exempted turnover. If, however, there is a violation of the terms of declaration when such goods are not resold in Orissa, under the proviso the price of such goods so utilised (in violation) is to be added back to the taxable turnover.

6. Before we proceed further we think it appropriate to modify the question sligh