G.P. Singh, C.J.
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 Tribunal's 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.  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 that the price of a bag of fertiliser is Rs. 212.20. We also find from the, order of the Assistant Commissioner of Sales Tax that the price of one empty polythene-lined bag is nearly Rs. 1.75. It is thus clear that the price of the bag is insignificant as compared to the price of the fertiliser packed in it. We have already noticed that the fertiliser has, of necessity, to be sold in polythene-lined gunny bags to protect it and that the buyer, whether he be the wholesaler or retailer, can make no use of the bag except as a container of, or packing material for, the fertiliser purchased in it, for by the time the contents are taken out, it (the bag) becomes useless due to chemical action. As rightly observed by the Tribunal, the container here is not like a tin containing kerosene oil or ghee, or a bag containing sugar where the container has value and can be used after its contents are emptied. The container here is like a glass ampule which has to be broken and made useless before taking out the injectable liquid from it. Having regard to all the facts and circumstances of the case, it cannot be said that the assessee intended to sell and the buyers from it intended to buy the polythene-lined bags when the fertiliser packed in the bags was sold. The more reasonable conclusion is that there Was no sale of bags which were used as a cheap and convenient vehicle of transport of the fertiliser sold by the assessee.
5. The learned counsel for the department referred to us the case of M. A. Razack & Company v. State of Madras  19 S.T.C. 135 (S.C.). This case, however, is clearly distinguishable. In this case, the question was whether exemption in respect of packing material could be granted under Rule 5(1)(g) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. It was found that the bills issued did not mention separate price of packing material which was a necessary condition of exemption and, therefore, the statutory exemption under the rule was not attracted. The learned counsel also relied upon the decision of this Court in Bhagwandas v. Commissioner of Sales Tax, M.P. 1978 M.P.L.J. 334 This case related to sale of bidis packed in wooden crates and the question was whether there was sale of wooden crates. The distinguishing feature of this case is that there was an agreement that bidis had to be supplied duly packed in crates and the crates did not become useless in the hands of the purchaser.
6. For the reasons given above, we answer the question referred to us in the affirmative in favour of the assessee and against the department. There shall be no order as to costs.