M.S. Menon, C.J.
1. This is an appeal from the decision of Madhavan Nair, J., dismissing the petition of the appellant, O.P. No. 700 of 1964. The appellant is a firm trading in kerosene among other things. It is common ground that the appellant sells kerosene in two ways, in sealed tins and loose, without a container.
2. The controversy before us relates to the sales of kerosene in sealed tins. The appellant claimed a deduction from his total turnover of the value of the tins, namely, Rs. 1,80,000 under Rule 9 of the Kerala General Sales Tax Rules, 1963. The claim was rejected by the Sales Tax Officer by exhibit P-1 dated 27th July, 1963, and by the Appellate Assistant Commissioner by exhibit P-3 dated 31st October, 1963. The prayer in the petition from which this appeal arises was that the orders of the Sales Tax Officer and the Appellate Assistant Commissioner should be quashed by a writ of cerliorari or other appropriate writ, order or direction under Article 226 of the Constitution.
3. The relevant portion of Rule 9 of the Kerala General Sales Tax Rules, 1963, reads as follows -
In determining the taxable turnover, the amounts specified in the following clauses shall, subject to the conditions specified therein, be deducted from the total turnover of the dealer -
(f) all amounts falling under the following two heads, when specified and charged for by the dealer separately, without including them in the price of goods sold ;
(ii) charges for packing and delivery.
It is agreed by the department that the value of the tins has been specified and charged for separately. The only submission is that the value of the tins, in a case like this, cannot be considered as a charge for packing and delivery.
4. In order to decide whether an amount obtained by a dealer from his purchaser is a charge for packing and delivery, we must first decide what is the item sold, and then find out whether the amount involved is a charge for the packing and delivery of that item. If what is sold is kerosene, then it has certainly to be packed in a container before delivery, and the charge for packing the kerosene in a container, if specified and charged for separately, will come within the ambit of Rule 9 of the Kerala General Sales Tax Rules, 1963.
5. If, on the other hand, what have been sold are sealed tins of kerosene, as in this case, then the articles sold are packaged articles and no further packing in any container will be usual or necessary. In other words the value of the packing when the article sold is a packaged article cannot be considered as coming within the expression 'charges for packing and delivery' in Rule 9 of the Kerala General Sales Tax Rules, 1963.
6. The judgment under appeal, after dealing with the course of the trade in kerosene followed by the appellant, says :
In the circumstances, I would regard the sale of kerosene in a sealed tin as the sale of an article-'the sealed tin with the kerosene in being the article that was sold.
We see no reason to differ from this statement.
7. Section 2(h) of the Central Sales Tax Act, 1956, defines the expression 'sale price' as meaning the amount payable to a dealer as consideration for the sale of any goods, inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery. Patel in his commentary to the definition says :-
Whether the charges received, for packing materials will form part of the sale price will depend upon the nature of contract. For instance, when the contract is to purchase goods-oil in barrels-an implied contract to purchase the packing material can readily be inferred. In such cases cost of packing materials cannot be termed as cost of delivery or services. (The Central Sales Tax Act, 1956, by R. V. Patel, Second Edition, page 131).
8. Against the order of the Appellate Assistant Commissioner- exhibit P-3-the appellant had a remedy by way of appeal to the Appellate Tribunal under Section 39 of the Kerala General Sales Tax Act, 1963, and then by way of revision to this Court under Section 41 of the said enactment. The appellant has not chosen to resort to those remedies and on that ground also the petition under Article 226 of the Constitution should be considered as unsustainable.
9. In the light of what is stated above the appeal must fail and has to be dismissed. We do so ; but in the circumstances of the case without any order as to costs.