1. In these two References under section 61(1) of the Bombay Sales Tax Act, 1959 made at the instance of the Commissioner of Sales Tax, the following two questions have been referred to us :
1. Whether on the facts and in the circumstances 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 Clause (a), (b), (c), (d) and (e) and the Explanation to Rule 41 are separate items and that the Department is totally wrong in making good the adverse balance under any clause of Rule 41 by deducting the set-off under a different head of Rule 41 having regard to the word 'aggregate' appearing in the opening sentences of Rule 41
2. 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 the 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 respondents to their branches, but only on that part of the sale price of the goods so despatched to the branches which is attributable to the locally purchased raw material on which the respondents were claiming set-off
2. The first question is the same as the question which was referred to us in the Commissioner of Sales Tax vs. M/s. Jai Hind Oil Mills Co. (S.T. Ref. No. 20 of 1972, decided on Feb. 11/12-1976). In that case, we have held that this question was not properly framed and have reframed it. Accordingly, we reframe the first question in this Reference also as follows :
1. Whether having regard to the facts 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 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
Following our decision in M/s. Jai Hind Oil Mills Co.'s case referred to above, we answer the first question in this Reference as reframed in the affirmative.
3. So far as the second question is concerned, for the reasons given in our judgment in the Commissioner of Sales Tax vs. Cadbury Fry (India) Pvt. Ltd., S.T. Ref. No. 3 of 1974 decided on February 24, 1976), we answer the said question in the negative. In computing the actual amount of drawback, set-off or refund, as the case may be, to be granted to the respondents, the Tribunal will do so applying the principles laid down by us in our judgments in M/s. Jai Hind Oil Mills Co.'s case and Cadbury Fry (India) Pvt. Ltd.'s case. There will be no order as to costs in both these References.