1. This is Reference under section 61(1) of the Bombay Sales Tax Act, 1959 (hereinafter referred to as 'the said Act'), made at the instance of the Commissioner of Sales Tax. At all material times the respondents were registered were registered as dealers under the said Act. At the relevant time the respondents carried on the business as manufacturers of account oil. They sold the oil manufactured by them both locally at also outside the State through their branches in those States to whom they had despatched stocks of oil. For the purpose of selling oil manufactured by them the respondents purchased drums and tins from unregistered dealers. In respect of the purchases so made the respondent were liable to pay the purchase tax under section 13 of the said Act, which they duly paid along with the returns filed by them. The question which arises in this Reference is the amount of set off under the relevant rule of the Bombay Sales, 1959 (hereinafter referred to us 'the said Rules') to which the respondents were entitled in respect of the purchase tax so paid by them. This question before us relates to two assessment period viz. From January 1, 1960 to March 31, 1960 and from April 1, 1960 to March 31, 1961. In respect of any first period viz. January 1, 1960 to March 31, 1960, the respondents purchased drums and tins of the value of Rs. 56,612-63 from unregistered dealers and on the purchase thereof they paid purchase tax at the rate of 3% aggregating to Rs. 1,698-33. Out of the oil manufactured by the respondents a certain part of stock was despatched by them in drums to their branches outside the States and these branches in their turn sold from the stock so despatched drums of oil the aggregate value of Rs. 50,518-34. In the second period of assessment also viz. from April 1,1960 to March 31, 1961, the respondents purchased empty and tins from unregistered dealers and in respect of such purchased paid purchases tax along with their returns aggregating to Rs. 6,544-39. In this period also the respondents despatched oil manufactured by them in drums to their branches outside the State and the branches made sale from the stock so despatched.It is unnecessary to set out the value of the drums so purchased and of the oil sold in drums by the outside State branches of the respondents in second period of their assessment because the question before us is of interpretation of the relevant rule under which the respondent have claimed a set-off and the interpretation which we would place upon it would govern both the periods.
2. In pursuance of the power conferred upon it in that behalf the State Government, inter alia, made Rule 41 of the Bombay Sales Tax Rules, 1959 a rule which cannot be described as model either of brevity or of clarity. It runs into almost five closely printed pages and defines any to take in its complete meaning at one reading. Nonetheless, a little time spent over reading and rereading the said Rule makes the meaning emerge clearly. Clause (a) of the Rule relates to a drawback, set-off or refund, as the case may be to be granted to a dealer in respect of the purchase tax levied as also amounts recovered by his vendors from him by way of Sales tax or general Sales tax under the Sales Tax Act in force prior to the coming into force of these aid Act. Then comes clause (aa) which was inserted with effect from January 20, 1960. Clause (aa) deals with a drawback, set-off or refund to be granted to a dealer in respect of purchases tax paid or tax recovered on goods held in stock by him on January 1, 1960 and thereafter used by him in the manufacture of taxable goods for sale. Then follows an Explanation which covers both clauses (a) and (aa) of the said Rule.
3. Clauses (b), (bb) which also was inserted on January 20, 1960, (c), (cc) which was inserted on March 19, 1960, (d) and (e) deal with draw back, set-off or refund as the case may be to be granted types of transaction and goods and the manner of calculating such set-off etc. The Rule concludes with an Explanation to which there are two provision. It is around this Explanation and the opening words of Rule 41 of the said Rules that the real controversy in this reference has raged. Before we come to the actual provisions of Rule 41 of the said Rules, it may be mentioned that in the two periods of assessment in question the set-off was claimed by the respondents under clause (d) of Rule 41.
4. It is unnecessary to set out the whole of Rule 41 of the said Rules, because that would only confuse the matter. We, therefore, content ourselves with setting out the relevant provisions of that Rule only. During the periods of assessment in question, the relevant provisions of the said Rule were amended on more than one occasion. Both the sides have, however, agreed that these amendments do not in any way have any bearing on the question to be decided by us and that the said provisions as amended upto June 1, 1961 would be equally appropriate for the decision of this matter. The relevant provisions of the said Rules as on June 1, 1961 are as follows :-
'41. Drawback set-off etc. of tax paid by a manufacturer.
In assessing the amount of tax payable in respect of any period a Registered dealer, who manufactures taxable goods for sale (hereinafter in this rule referred to as the 'Manufacturing dealer'), the Commissioner shall grant him a drawback, set-off or as the case may be a refund of the aggregate of the following sums, that is to say :-
x x x (d) a sum paid or payables as purchase tax under section 13 of 14 by the Manufacturing dealer in respect of goods other than those specified in Schedule B, in entries 1 to 11 (both inclusive) and 15 in Schedule C, in entries 1 to 4 (both inclusive) in Schedule D or in entries 1 and 2 in Schedule E of the Act :-
Provided that such goods have actually been used by the dealer, in the manufacture of taxable goods for sale or in the packing of taxable goods manufactured by him for sale;
x x x Explanation :- For the purpose of this rule the word 'sale' with all its grammatical variations, shall include the sale of manufactured goods despatched by the dealer to his own place of business or to his agent outside the State and actually resold there.
Provided that where such despatch has been made to his own place of business or to his agent outside the State but within India.
(i) such despatch shall have taken place within nine months of the date of purchases of the goods so used;
(ii) the dealer, or his manager or agent, as the case may be, is registered under the Central Sales Tax Act, 1956, in respect of the place of business to which the goods are so despatched, and
(iii) the amount of drawback, set-off or refund, as the case be, shall be reduced by 1 per cent of the sale price of the goods so despatched :-
Provided further that if the dealer shows to the satisfaction of the Commissioner that not more than percent, of the total value of the finished goods so despatched was comprised of goods in respect of which the drawback set-off or refund claimed, the Commissioner shall not be reduce the amount of drawback, set-off of refund.'
5. According to the Department, the set-off to be granted to the despondence in respect of the first period was the sum of Rs. 1,698-33 being the aggregate of the purchase tax paid by them on the purchase of empty drums and tins of the value of Rs. 56,612-63 less the amount of Rs. 505-18 being one per cent, of the sale price of the manufactured goods, namely, oil in drums, despatched by the respondents to their outside-State branches and sold by such branches, that is, a sum of Rs. 1,193-15. The Tribunal, however, held, reversing the order of the Commissioner granting set-off on the above basis, that the respondents were entitled to a set-off in the sum of Rs. 1,624-43. According to the Tribunal, under clause (iii) of the first proviso to the Explanation to Rule 41 of the said Rules one per cent. of the sale price of oil despatched in drums by the respondents to their branches and sold by such branches viz. the sum of Rs. 505-18, was to be deducted from the set-off in respect of purchase tax to be granted to the respondents only in respect of drums in which oil was despatched to outside-State branches and not in respect of the drums and tins purchased by the respondents irrespective of the fact whether these drums were used in making inside-State sales or outside-State sales through their branches. The purchase tax payable in respect of the drums despatched to outside-State branches was Rs. 73-90. According to the Department, the sum of Rs. 505-18 was to be deducted from the said sum of Rs. 73-90, which would give a minus figure of Rs. 431-28. This minus figure has been referred to by the Tribunal as an adverse balance. The State of Maharashtra had no power to levy tax on sale taking place outside the State. Therefore, according to the Tribunal this adverse balance of Rs. 431-28 cannot be recovered by the Department from the respondents nor can the respondents set it off against the amount of set-off to which the respondents were entitled in respect of local sates. The Tribunal arrived at this conclusion upon the interpretation it placed upon the explanation was to create a new category of set-off, drawback or refund in respect of goods despatched by a manufacturing dealer to his branches and agents outside the State and sold by such branches and agents.
6. Mr. Cooper, learned counsel for the Applicant, has submitted before us that the interpretation placed by the Tribunal on Rule 41 particularly on the Explanation thereof was wrong. Mr. Cooper laid particular emphasis upon the opening words of Rule 41 and upon clause (iii) of the first proviso to the said Explanation. In Mr. Cooper's submission, under Rule 41 what the Commissioner was to grant to a dealer was 'a drawback set-off or as the case may be a refund of the aggregate of the following sums', that it to say, the sums worked out according to clauses (a) to (e) or such of them as may be applicable and that there was separate or independent set-off drawback or refund provided for by each of these different clauses. Mr. Cooper further submitted that the said Explanation to the whole of Rule 41 had to be read into each and everyone of the clause of the said Rule and that what the Explanation did was to extend the meaning of the word 'sale' so as to include sales of goods made outside the State by the outside State branches and agents of a manufacturing dealer carrying on business within the State. Mr. Cooper further submitted that clause (iii) of the first proviso to the said Explanation was an independent condition which governed the whole Rule or in other words, the Explanation was to be read along with the proviso and the first two clauses thereof while the third clause of the first proviso was to be read independently and as governing the entire Rule. In Mr. Cooper's submission if a dealer became entitled to a set-off under different clauses of Rule 41 the amounts had to be worked out separately and a total made of these amounts in order to arrive at the actual set-off to be given to a dealer and that if under one of these clauses the result was a minus figure or an adverse balance, as the Tribunal has called it, such minus figure has to be deducted from the plus figures. For instance, this would be the case where one per cent. of the sale price of sales made by outside-State branches of a dealer, which had fulfilled the conditions prescribed in clauses (i) and (ii) of the first proviso to the Explanation, under any particular clause exceeded the total set-off of the purchase tax under that clause both in respect or the local sales and such outside-State sales. This would also be the case where there were only outside-State sales and one per cent of the sale price of such outside-State sales exceeds the purchase tax paid on materials which have gone into the manufacture of such goods or have used as containers or as packing materials for such goods. According to Mr. Cooper, this position is made abundantly clear by the use of the phrase 'the aggregate of the following sums' in the opening paragraph of Rule 41 of the said Rules. According to Mr. Cooper, it was a fallacy to consider an aggregate as merely an aggregate of plus figures. It could, according to him, be both an aggregate of plus figures and of minus figures. It could, according to him, be both an aggregate of plus figures and of minus figures. We are unable to accept these submissions. The word 'aggregate' as used here is in the sense of an addition of the result arrived at under each clause of Rule 41 as expressed in a sum of money which is to be granted to a dealer. It is not possible to contemplate the grant of refund of a minus figure to a dealer. A sum means an actual amount of money which is to be granted to a dealer and the aggregate of such sums means the aggregate of the sums to be allowed to a dealer under each of the clauses of Rule 41. The manner of calculating this aggregate is not like the working out of an algebraic problem by totalling plus quantities and minus quantities.
7. According to us, the whole object of Rule 41 of the said Rules was to grant relief to a manufacturing dealer with the aim of seeing that the cost of manufacture in this State did not bear too heavy an incidence of taxation. But for such provisions for a set-off, refund etc., the ultimate cost of the finished product would have to bear the cost of purchase tax of the amounts collected by way of tax from the manufacturing dealer in respect of raw materials, even semi finished products and containers and packing materials for the manufactured goods thus increasing the ultimate cost of the goods. The State intended to give this benefit to its own industries not only in respect of local sales or inside-State sales made by them but also in respect of outside-State made by them so that the goods manufactured in this State might not suffer in competition with goods manufactured in other States. For this reason, the State which was the rule-making authority in the said Explanation in Rule 41, with however, this qualification that in the case of a set-off due on account of purchase tax in respect of goods which had gone into the manufacture or packing of the finished products which were sold by the manufacturing dealer's branches and agents outside the State but within India, the set-off should be available only if such despatches had taken place within nine months from the date of purchase of the goods used in the manufacture or packing of goods or containers for manufactured products, and if the dealer or his manager or agent, in respect of the place of business to which the goods were despatched, was registered under the Central Sales Tax Act, 1956. It also provided that in these circumstance the full set-off should not be allowed to the dealer, but the set-off due to him should be reduced in the manner provided for by clause (iii) of the first proviso to the Explanation.
8. According to Mr. Cooper the Explanation was not introduced into Rule 41 for the benefit of a dealer alone but for the benefit of both the dealer and the Government. According to Mr. Cooper, the State was not bound to give any set-off or refund at all. He further, pointed out that if a manufacturing dealer sold goods through his branches and agents outside the State instead of as inter-State sales which would have been liable to central sales tax at least at the minimum rate of one per cent and which under the Central Sales Tax Act, 1956, would have been allocated to the State. In Mr. Cooper's submission the intentions of the State Government was to make up for the central sales tax which it had thus lost by adjusting it against the set-off due to such dealer. We are unable to accept these submissions. Section 42 of the said Act provides as follows :-
'42. Drawback, set-off, refund etc.
The State Government may by rules provide, that :-
(a) in such circumstances and subject to such conditions as may be specified in the rules a drawback, set-off or refund of the whole or any part of the tax.
(i) paid or levied or leviable under any earlier law in respect of any earlier sales or purchases of goods which are held in stock by a dealer at the commencement of this Act, be granted to such dealer, or
(ii) paid or levied or leviable in respect or any earlier sale or purchase of goods under this Act or any earlier law, be grantee to the purchasing dealer;
(b) for the purpose of the levy of tax under any of the provisions of this Act the sale price or the purchase price shall in the case of any class of sales or purchases be reduced to such extent, and in such manner, as may be specified in the rules'.
Thus, the intention of the Legislature in enacting section 42 was to grant to the purchasing dealer a set-off drawback or refund of the whole or in part of the tax paid or levied or leviable, inter alia, in respect or an earlier sale or purchase of goods. There is nothing in this section which shows an intention to enable the State to adjust the revenue which it would have otherwise got on allocation by the Central Government of the Central sales tax levied under the Central Sales Tax Act, 1956. There is a constitutional bar under article 286 of the Constitution of India against a State levying sales tax or purchase tax on transactions of sales or purchases which have taken place outside the State or in the course of inter-State trade or commerce. We can understand that the State might take the view that it would not allow any set-off in respect of purchase of goods which have gone into the manufacture of goods which have been sold outside the State or goods which have been used as containers or packing materials for goods so sold. We, however, find it difficult to attribute to the State an intention to recover indirectly the amount of the central sales tax which it did not get, because these goods were not sold from the State of Maharashtra in the course of inter-State trade or commerce unless the language of the rule clearly indicated such an intention. In the present case, we are unable, on a plain reading of this Explanation, to attribute any such intention to the rule-making authority as canvassed for by the Department.
Dated the 12th February, 1976
We will now analyse the Explanation to Rule 42 of the said Rules in relation to the other parts of that Rules. As mentioned earlier, clauses (a) to (e) of that Rule provide for set-off etc. to be granted to a manufacturing dealer in respect of taxable goods manufactured for sale by him in the circumstances set out in those clauses, when he sells the manufactured goods. Clause (28) of section 2 of the said Act defines the term 'sale' as meaning 'a sale of goods made within the State, for cash or deferred payment or deferred payment or other valuable consideration .......'. It further provides that 'the words 'sell', 'buy' and 'purchase', with all their grammatical variations and cognate expressions, shall be construed accordingly,'. Under section 20 of the Bombay General Clauses Act, 1904, the expressions used in any rules made under an Act have the same respective meanings as in the Act conferring the rule-making power. Thus, the words 'sell', 'sale', 'buy' and 'purchase' wherever they occur in Rule 41 upto clause (e) of that Rule must bear the meaning assigned to these words by the said clause (28) of section 2 of the said Act. By reason of this definition, a manufacturing dealer would thus be entitle to a set-off in respect of purchase tax paid by him or tax collected from him by dealers selling to him only when the sells the manufactured goods within the State of Maharashtra and not outside the State of Maharashtra. A large number of manufacturing dealers manufacture goods not only for local market but also for export either outside India or to other States in India and therefore, in such cases if the said Rule 41 were to stop at clause (e),these manufacturing dealer would not be entitled to get any set-off when they have exported the goods manufactured by them. In order to grant to them relief with respect to such exports, the said Explanation was added to the said Rule 41, whereby the definition of the word 'sale' was extended. The opening paragraph of the Explanation states that' for the purposes of this rule the word 'sale' with all its grammatical variations, shall include the sale of manufactured goods despatched by the dealer to his own place of business or to his agent outside the State and actually resold there. 'Pausing here for a moment, it will be noticed that the opening paragraph of the Explanation speaks only of despatches by the dealer to his own place of business or to his agent outside the State, but does not make any distinction between his branches and agents outside the State but within India and those outside India. Therefore, if this paragraph were alone to be there in the Explanation to Rule 41 a dealer would be entitled to the full amount of the set-off as provided in clause (a) to (e) both in respect of the manufactured goods sold by him within the State as also sold through his branches and agents outside the State irrespective of the fact whether such branches or agents were in India or outside India. The first proviso to that Explanation shows that in the case, however, of branches and agents outside the State but within India the rule-making authority did not intend to give the full amount of the set-off as calculated according to clauses (a) to (e) nor any set-off unless certain conditions were fulfilled. That proviso provides that where manufactured goods have been despatched by the dealer to him own place of business or to his agents outside the State but within India, in order for a set-off to be granted to the dealer three conditions have to be fulfilled, namely, (1) the despatch should have taken place within nine months of the date of purchase of the goods to used, (2) the dealer or his manager or agent, as the case may be, must be registered under the Central Sales Tax Act, 1956, in respect of the place of business to which the goods are so despatched, and (3) the amount of drawback, set-off or refund, as the case may be, shall be reduced by one per cent. of the sale price of the goods so despatched.
9. We will now examine the Department's contention that the third clause of the firm proviso to the Explanation to Rule 41 applies to all types of sales, while the first two clauses of the first proviso applied only when manufactured goods are despatched by a dealer to his branch on agent outside the State but within India and sold by such branch or agent. In our view, the contention is not sound. All the clauses of Rule 41 have to be read together with the Explanation, but they have to be read with the Explanation taken as a whole. There is not just one category of sale under Rule 41. By reason of the extension of the definition of the term 'Sale' by the Explanation, sales have to be divided into three categories : (1) sales within the State, (2) sales outside India effected by the dealer's place of business or his agent residing at that place outside India, and (3) sales effected by the dealer's place of business or his agent outside the State but within India to whom the goods were despatched. The third category of sale has three qualifications attached to it. These qualifications are set out in the clauses of the first proviso. The first proviso is an integrated one and deals with a particular class of sales only, namely sales in India. It cannot to split up into two parts, one consisting of the first two clauses of that proviso as going with this particular class of sales and the other consisting of the third clause as going with every class of sales. If such has been the intention of the sale price by one per cent. would not have been found in clauses (iii) to the said proviso but would have featured separately as an independent proviso or in some other form. This is made further abundantly clear by the wording of clause (iii) itself, when compared with the wording of the opening paragraph of Rule 41 of the said Rules. Clause (iii) of the first proviso to the Explanation to Rule 41 provides.
'(iii) the amount of draw-back, set-off or refund as the case may be shall be reduced by I Per cent. of the sale price of the goods so despatched;'
The amount which a dealer becomes entitled to get under the various heads provided for in claused (a) to (e) as set-off is not described in that Rule as 'the amount of drawback, set-off or refund'. It is specifically and expressly described in the opening paragraph of Rule 41 as 'the aggregate of the following sums', that is, the sums worked out in respect of the amount of drawback, set-off or refund to which a dealer is entitled under each of the clauses (a) to (e) of Rule 41. The amount of set-off etc. is, therefore, not the same as the aggregate of the amount of set-off etc. under clause (a) to (e) of the said Rule. It was, however, submitted on behalf of the Department that had the intention been to confine clause (iii) only to a set-off claimable in respect of the manufactured goods sold by a dealer or his branches an agents outside the State but within India, the phraseology would have been 'the amount of such drawback, set-off or refund'. In our opinion, it was not necessary for the rule-making authority to use any such phraseology, because the rule-making authority has made the position clear by using the words 'the amount of drawback, set-off refund' instead of the words 'aggregate of the sums' under clauses (a) to (e), as being the amount of drawback, set-off refund to which a dealer is entitled under each of these clauses when read with the Explanation.
10. It was further submitted on behalf of the Department that the fact that the State Government intended in such circumstances to reimburse itself for the amount of Central sales tax it lost is shown by the fact that when originally made, clause (iii) of the proviso provided for reduction at the rate of one per cent. of the sale price of the goods despatched which was the minimum rate of the central sales tax at the time and that as the rates of central sales tax increased the percentage of reduction under the third clause was also correspondingly increased by amendments. Therefore, the intention was that if the State Government could not reimburse itself for full one per cent. it would do so from other amounts due to a dealer. We have in part already dealt with this submission earlier, We are unable, on a clear language of this clause and the use of the words 'the amount of drawback, set-off or refund'. Therein coupled with the fact that only such amount in directed to be reduced, to accept this submission. Support was sought for this submission by placing reliance upon the second proviso to the Explanation. Under that proviso if the dealer shows to the satisfaction of the Commissioner that not more that one per cent. of the total value of the manufactured goods so despatched was comprised of goods in respect of which the drawback, set-off or refund is claimed, the Commissioner is not to reduce the amount of drawback, set-off or refund. It was submitted that this proviso amply showed the intention of the State to reimburse itself in the manner urged before us by the Department. According to us, however, this proviso shows exactly the contrary intention. In this context it is pertinent to bear in mind that when clause (iii) of the first proviso was amended from time to time to increase the percentage of reduction to make it correspond to the rate of central sales tax, the percentage provided for under the second proviso remained constant. Further, the second proviso also gives a clear indication of what is 'the amount of drawback, set-off or refund' in clause (iii), because under the second proviso, it is clear that the drawback, set-off of refund claimed is in respect of the sale of goods so despatched, and the amount reduced is the amount of such drawback, set-off or refund and there is no provision for deducting any balance amount described as an adverse balance by the Tribunal from and amount of drawback, set-off or refund.
11. In this reference, the following question has been referred to us :-
'Whether on the facts and in the circumstance of the case and on a true and proper interpretation of rule 41 of the Bombay Sales Tax Rules, 1959, the Tribunal was justified in coming to a conclusion that the clauses (a), (b), (c), (d) and (e) and the Explanation to rule 41 are separate items and that the Department is totally wrong in making goods the adverse balance under any clause of rule 41 by deducting the set-off under a different head of rule 41 ?'
As the above discussion shows, the controversy adumberated in this question is not the real controversy between the parties. We accordingly reframe the question submitted to us as follows :-
'Whether having regard to the fact and circumstances of the case and on a true and correct interpretation of Rule 41 of the Bombay Sales Tax Rules, 1959,the Tribunal was correct in law in holding that the reduction under clause (iii) of the first proviso to the Explanation to Rule 41 is to be made only from the set-off, refund or drawback, as the case may be, due to a dealer in respect of the purchase of goods used in the manufacture of taxable goods for sale or as packing materials or containers for sale or as packing such manufactured goods in cases where such manufactured goods have been sold in the manner provided for in the Explanation to the said Rule 41 read along with clauses (i) and (ii) of the said proviso ?'
12. For the reasons stated above, we answer the question as so reframed by us in the affirmative. The Applicant will pay to the Respondents the costs of this Reference fixed at Rs. 250/- .