( 1. ) THIS judgment shall also dispose of Misc. Civil Cases Nos. 513 of 1973 and 514 of 1973. These are common statements under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958, sent to us by the Sales Tax Tribunal (Board of Revenue) referring for our answer the following question of law : Whether, in the facts and circumstances of the case, the Tribunal was right in holding that there was no implied sale of packing material ?

( 2. ) THE relevant periods of assessment are calendar years 1962, 1963 and 1964. The assessee manufactures and sells superphosphate fertiliser. The fertiliser sold by the assessee is packed in polythene-lined gunny bags. No separate price is charged for gunny bags but their cost is taken into account in fixing the price of fertiliser. The Tribunal has found that the very composition of fertiliser is such that to prevent acidic action and to protect the article from outside atmospheric effect and to keep it fit for use it has to be packed and sold in polythene-lined gunny bags. It has further been found that the bags have no value by the time the fertiliser reaches the consumer-buyer as they become useless due to acidic and chemical action of the fertiliser. The Tribunals conclusion was that there was no express or implied sale of the bags and that the bags were used as a convenient mode of transporting the goods to the buyer.

( 3. ) SALES tax can be imposed only on the basis that the assessee sold the packing material to the purchasers. It is common ground that there was no express sale of the polythene-lined gunny bags, which were used in the instant case as packing material. The only question then is whether there was an implied sale of the bags. Questions of this nature have to be answered on the facts and circumstances of each case in the light of the principles laid down by the Supreme Court in Hyderabad Deccan Cigarette Factory v. State of A. P. [1966] 17 S. T. C. 624 (S. C.), which was a case relating to sale of cigarettes : The authority concerned should ask and answer the question whether the parties in the instant case, having regard to the circumstances of the case, intended to sell or buy the packing materials, or whether the subject-matter of the contracts of sale was only the cigarettes and that the packing materials did not form part of the bargain at all, but were used by the seller as a convenient and cheap vehicle of transport. He may also have to consider the question whether, when a trader in cigarettes sold cigarettes priced at a particular figure for a specified number and handed them over to a customer in a cheap cardboard container of insignificant value, he intended to sell the cardboard container and the customer intended to buy the same ? It is not possible to state as a proposition of law that whenever particular goods were sold in a container the parties did not intend to sell and buy the container also. Many cases may be visualized where the container is comparatively of high value and sometimes even higher than that contained in it. Scent or whisky may be sold in costly containers. Even cigarettes may be sold in silver or gold caskets. It may be that in such cases the agreement to pay an extra price for the container may be more readily implied. . . . Whether there was an agreement to sell the packing materials is a pure question of fact and that question cannot be decided on fictions or surmises. That is what has happened in this case. The Commercial Tax Officer invoked a fiction ; the Assistant Commissioner of Commercial Taxes relied upon the doctrine of finished product: the Appellate Tribunal relied upon surmises; and the High Court, on the principle of implied agreement. But, none has tackled the real question. The burden lies upon the Commercial Tax Officer to prove that a turnover is liable to tax.

( 4. ) APART from the facts referred to by the Tribunal in the statement of the case, we find from the order of the Deputy Commissioner of Sales Tax t