V. Ramaswami, J.
1. In these three tax cases one common question of law is raised as to the includibility of sales tax collections in the taxable turnover. In T.C. No. 15 of 1974 an additional point is raised as to the taxability of the turnover of empty gunnies. There are two different assessees and the facts are a little different though common question is raised. M/s. Ultramarine and Pigments Ltd., Madras, the assessees in T.C. Nos. 13 and 14 of 1974, are manufacturers and sellers of ultramarine blue. They sell only in wholesale to the dealers of the products manufactured by them. They had fixed the price including sales tax at 3 per cent in respect of the goods sold in the State of Tamil Nadu. It may be mentioned that in respect of the assessment years 1967-68 and 1968-69, which are the assessment years in question, sales tax payable under Section 3(1) of the Tamil Nadu General Sales Tax Act (hereinafter called the Act), in respect of the commodities sold by the assessees for the period subsequent to 1st July, 1967, was 3 per cent. In the price list covering the period prior to July, 1967, the price included sales tax at 2 per cent. There was a further term which stated that all the prices given in the price list are inclusive of the Tamil Nadu general sales tax/Central sales tax against C form and if C form is not furnished extra 7 per cent will be charged. On the basis of the price list, invoices were prepared by the assessees showing one consolidated price including 3 per cent or 2 per cent sales tax as the case may be. Even in the return in form-A-2 they showed only the total turnover and did not show any amount separately as the amount collected by way of tax. But at the time of making assessment under Rule 18(6) of the Tamil Nadu General Sales Tax Rules, the assessees claimed that a sum of Rs. 43,887.03 and Rs. 45,729.22 for the assessment years 1967-68 and 1968-69 respectively representing the sales tax was collected by the assessees and that, therefore, it should not be treated as taxable turnover. This was on the basis that the Board of Revenue had issued instructions directing the assessing authorities that 'sales tax collected as such by a dealer from his customers should not be included in the total turnover of the dealer'. But the assessing authority and the appellate authority rejected this claim on the ground that the assessees had not collected sales tax separately in the sale bills and that there was no provision to deduct the sales tax included in the price structure fixed by the assessees. But on a further appeal, the Tribunal was of the view that it was not necessary to show separately the sales tax collected in the sale bills in order to claim the benefit of the Board's instructions not to include sales tax in the taxable turnover and that if the evidence showed that the amount actually collected by the assessees included the sales tax payable, the amount collected towards sales tax had to be deducted from the taxable turnover. Accordingly, the Tribunal directed the assessing authority to work out the actual sales tax collected by the assessees and give relief to them.
2. In T.C. No. 15 of 1974, the assessees are M/s. Mysore Fertilisers. In respect of the manure mixture manufactured by them, the prices are fixed by the Government of Tamil Nadu under the relevant control orders. The maximum retail price per bag fixed by the Government included sales tax and transport charges. The Government fixed the price with reference to the standard grades of mixture and the packing. The assessees in the price list showed the maximum retail price fixed by the Government and the agent's commission payable in respect of retail sales made by the dealers. Neither the assessees nor the dealers are entitled to sell above the prices fixed by the Government. Even the agent's commission payable by the assessees had to come out from the retail price fixed by the Government. The assessment year in this case is 1969-70. In the return in form A-l the assessees claimed a sum of Rs. 1,78,674.12 as the amount of sales tax included and collected on account of sales of manure mixture as per the price fixed by the Government and wanted a deduction of the same from the taxable turnover relying on the Board's instructions. The assessees also claimed a deduction of a sum of Rs. 34,327.49 as representing the sales of empty gunnies. The assessing authority rejected the claim for deduction of sales tax collected on the ground that they have not shown the tax collections separately. He also rejected the claim relating to sales of empty gunnies. This order was confirmed by the Appellate Assistant Commissioner. But on a further appeal the Tribunal held that since sales tax had actually been included in the price fixed by the Government, the amount representing the sales tax collected would have to be deducted from the total turnover. Since there was some dispute as to the amount actually included in the sales turnover of manure mixture, the Tribunal directed the assessing authority to work out the sales tax collections made by them and for that purpose remanded the matter. So far as the sales of empty gunnies were concerned, the Tribunal directed the deletion of the same on the ground that the assessees were not dealers in empty gunnies and that the sale of empty gunnies were not in the course of their business.It is against this order of the Tribunal that the revenue has filed the above three cases.
3. We could easily dispose of the point relating to the taxability of the turnover relating to the sales of empty gunnies. In view of the decision of the Supreme Court in State of Tamil Nadu v. Burmah Shell Co. Ltd. : 2SCR636 , the turnovers relating to sales of empty gunnies in the instant cases are also taxable and the view of the Tribunal that they are not liable to be included in the taxable turnover is, therefore, incorrect and, accordingly, liable to be set aside.
4. But so far as the turnover alleged to represent the sales tax collected is concerned, we think that the order of the Tribunal is correct. The learned Government Pleader raised a larger question as to whether the sales tax collections whether separately charged or included in an all-inclusive price-are liable to be deducted from the total turnover or not as this related to the assessment years 1967-68, 1968-69 and 1969-70, which are prior to the amendment of Section 2(r) relating to turnover by inclusion of explanation (1-A). But it is not necessary for us to go into that question as what was relied on by the assessees were the Board's instructions which directed the assessing authority that 'sales tax collected as such by a dealer from his customers should not be included in the total turnover of the dealer'.
5. In Lipton (India) Ltd. v. State of Tamil Nadu  32 S.T.C 194., this court had to consider a similar case. In that case, Lipton (India) Ltd., who are dealers selling tea all over India had sold tea as per the price list determined by them voluntarily. This price list showed the net actual price for the tea and the sales tax payable thereon. As the sales tax payable in respect of each State is different, the price list indicated the various aggregate amounts payable for the supplies made to dealers in various States. The actual bills made out by the assessee showed the correct amount referred to in the price list including the sales tax and did not show the price and the sales tax separately. It was contended on behalf of the assessee that since all sales were based on the price list supplied to the purchasers, the purchasers were clearly made aware of the fact as to what portion of the bill amount represented the net price for the tea and what portion represented the sales tax and that, therefore, though the break-up of the figures was not shown in the bills, the sales tax was clearly intended to be passed on to the purchasers. A Division Bench of this Court, to which one of us was a party, held :
In view of the instruction issued by the Board of Revenue, it is not disputed by the revenue that if sales tax has been collected separately apart from the contract price in the bills, the dealer is entitled to have the sales tax excluded from his total turnover. As a matter of fact, the authorities below refused to exclude the sales tax amounts from the total turnover in this case only on the ground that the sales tax had not been separately shown in the bills. But we have already expressed our view that the bills rendered by the assessee have to be read along with the printed price list, which gave the break-up figures of the actual price for the goods and the sales tax payable thereon. If the sale bills are read along with the price list, it is clear that the assessee had treated the sales tax separately from the actual price of the goods and had intended to pass on the tax to the purchaser. In this view, the assessee should be taken to have substantially complied with the conditions set out in S.O. 13, which provides that if the sales tax collected is separately shown, the dealer will be entitled to the exclusion of that amount.
6. It may be seen from the ratio of this decision that sales tax should not merely have been collected in fact by inclusion of the same in the allinclusive price but also there should be a contractual obligation on the part of the purchaser to pay the tax. If the price list apparently shows inclusion of the sales tax and the payment of the sales tax was not and could not be the subject-matter of bargain between the parties, it had to be inferred that the purchaser agreed to pay the tax and did pay sales tax when he paid the price as fixed in the list and purchased the article. In fact, in the case of Mysore Fertilisers it was not even open to the assessees to waive the sales tax collections as that had already been included in the price fixed by the Government and the manure will have to be sold only at the price fixed. Even in the case of Ultramarine and Pigments Ltd., there was no evidence to show that in any particular transaction there was any bargain under which the assessee had waived the right to collect the tax. In view of these circumstances, we could easily come to the conclusion that the assessees did collect sales tax as such and the purchasers also consciously paid that tax. All the same, we are not interfering with the direction of the Tribunal to the assessing authority to go into the actual amount that is included in the turnover which has to be deducted. We accordingly confirm the order of the Tribunal on the question of nonincludibility of the turnover relating to sales tax in the taxable turnover, but set aside the order of the Tribunal so far as it related to the turnover of sales of empty gunnies. There will be an order accordingly. Since the assessees have substantially succeeded in the tax revision cases, they will be entitled to their costs. Counsel's fee Rs. 150 in each case.