JUDGMENT

S.D. Shah, J.

1. On application being made under section 69 of the Gujarat Sales Tax Act, 1969 (hereinafter referred to as "the said Act') the Gujarat Sales Tax Tribunal has referred the following question of law for our decision :

"Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that fumigation covers, tarpaulin, nylon ropes and patramats are not covered by the scope of section 8(3) of the Central Sales Tax Act, 1956 and cannot, therefore, be specified in the certificate of registration for being purchased against declarations in form 'C' at concessional rates provided under section 8(1) of that Act ?

2. Few facts giving rise to the present reference need be shortly stated :

(i) The applicant is a statutory corporation constituted and established under the Food Corporation Act, 1964 and it is registered as a dealer under the Central Sales Tax Act, 1956. The applicant, inter alia, carries on business to purchase foodgrains and to distribute and sell them at fair price to consumers. After purchasing the foodgrains the applicant is required to store them and while under storage the applicant is also required to protect them, and thereafter to sell them. It is the case of the applicant that for that purpose it requires the following goods :

(i) Fogging sprayers,

(ii) Fumigants,

(iii) Insecticides,

(iv) Pesticides,

(v) Laboratory instruments,

(vi) Fumigation covers,

(vii) Tarpaulins,

(viii) Nylon ropes,

(ix) Patramats,

(x) Fire-fighting equipments.

The said goods were, however, not specified in the certificate of registration as originally issued to the applicant under section 7 of the Central Act, and therefore, the applicant was unable to purchase those goods on payment of concessional rate of sales tax under the Central Act to the selling dealer in terms of section 8(1)(b) read with sub-section (3) of section 8 of the Central Act because of its inability to furnish declarations in the prescribed form "C" to the selling dealer as required by sub-section (4) of section 8.

(ii) The applicant, thereupon, filed four applications to have its certificate of registration duly amended to the Sales Tax Officer under rule 7(1) of the Central Sales Tax (Registration and Turnover) Rules, 1957. In such applications, the applicant mentioned 10 items referred to hereinabove which it wanted to be introduced in its registration certificate.

(iii) By judgment and order dated 18th June, 1977, the Sales Tax Officer substantially rejected such applications because he was of the opinion that the goods (foodgrains) were meant or intended for resale and as such they could not be used by the applicant "in the manufacture or processing of goods for sale", nor were they required by the applicant "for being used for the packing of goods for sale", i.e., "for packing of food-grains for sale".

(iv) Being aggrieved by the judgment and order of the Sales Tax Officer, the applicant carried the matter in appeal to the Assistant Commissioner of Sales Tax, who dismissed the same, inter alia, holding that the applicant purchased the foodgrains and resold the same in the same form in which they were purchased, and therefore, the items referred to hereinabove were meant or intended for preservation of foodgrains against its decay or deterioration, and it cannot be said that they are required to be used in the manufacture or processing of goods or packing the goods.

(v) The applicant carried the matter further in appeal to the Gujarat Sales Tax Tribunal and before the' Tribunal the applicant classified the first five items into first category for use by him in the processing of goods for sale. The Tribunal accepted the plea of the applicant with respect to (i) fogging sprayers, (ii) fumigants, (iii) insecticides, (iv) pesticides to the effect that the said goods were the goods which the applicant requires for use in the processing of foodgrains for sale within the meaning of clause (b) of sub-section (3) of section 8 of the Central Act, and, therefore, the Tribunal granted amendment of certificate of registration by inclusion of said four items in its registration certificate. With respect to item No. (v) of the said first category, namely, "laboratory instruments" the Tribunal granted the same holding that the "laboratory instruments" were goods needed in the process to preserve foodgrains during the storage of foodgrains so that the applicant should retain the foodgrains in a fit or marketable condition for sale and therefore the "laboratory instruments" were also treated as items "for use by the applicant in the processing of goods for sale" within the meaning of section 8(3)(b) of the Central Act.

(vi) However, with respect to Fumigants covers, tarpaulins, nylon ropes and patramats, which were the goods covered for the second category, the Tribunal came to conclusion that those goods were required merely for the purpose of preservation of foodgrains in storage or to keep the foodgrains above ground level so that the foodgrains remain free from moisture. The Tribunal came to the conclusion that these goods were not meant for packing foodgrains for sale because the applicant sells the foodgrains in loose condition or in gunny bags and it does not sell them as packed in any manner. The Tribunal, therefore, came to the conclusion that the aforesaid four goods could not he included in the certificate and to that extent the application of the applicant for amendment of the certificate was rejected.

(vii) As regards fire-fighting equipments the present applicant did not press the appeal before the Tribunal, and therefore, the orders passed by the Assistant Commissioner and the Sales Tax Officer came to be confirmed.

3. We may mention at this stage that the opponent-State has accepted the order of the Tribunal in so far as it relates to inclusion of five goods in certificate of registration, namely, (i) fogging sprayers, (ii) fumigants, (iii) insecticides, (iv) pesticides and (v) laboratory instruments.

4. Being aggrieved by the judgment of the Tribunal in so far as it rejected the claim of the applicant for inclusion of four goods in its certificate of registration, namely, (i) fumigation covers, (ii) tarpaulins, (iii) nylon ropes and (iv) patramats the applicant preferred an application to the Tribunal under section 69 of the said Act for reference of question of law to this Court for our decision and the Tribunal has referred the question reproduced hereinabove for our decision.

5. In order to answer the above question, it is necessary to refer to section 8 of the Central Act in so far as it is relevant. The relevant provisions of section 8 of the Central Act read as under :

"8(1) Every dealer, who in the course of inter-State trade or commerce -

(a) sells to the Government any goods; or

(b) sells to a registered dealer other than the Government goods of the description referred to in sub-section (3);

shall be liable to pay tax under this Act, which shall be four per cent of his turnover.

(3) The goods referred to in clause (b) of sub-section (1)

(a) ........................................

(b) are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resale by him or .......... for use by him in the manufacture or processing of goods for sale or ...............

(c) are containers or other materials specified in the certificate of registration of the registered dealer purchasing the goods being containers or materials intended for being used for the packing of goods for sale;

............................"

It is thus clear that every dealer, who during the course of inter-State trade or commerce sells to registered dealer goods of the description referred to in sub-section (3), he shall he liable to pay tax at lesser rate of 4 per cent of his turnover. These goods are described by said clauses (h) and (c) of sub-section (3) of section 8. One common condition applicable to these goods is that they should he specified in the certificate of registration of the registered dealer. The goods which could be specified in the certificate of registration could be separately classified as under :

(i) goods being intended for resale;

(ii) goods being intended for use by dealer in the manufacture or processing of goods for sale;

(iii) goods being intended for mining;

(iv) goods being intended for generation or distribution of electricity or any other form of power;

(v) containers or other material intended for being used in the packing of goods for sale;

(vi) containers or other material used in the packing of any goods or class of goods specified in the certificate of registration or in the packing of any container or other material referred to in the above referred category (v).

6. In the present case, we are concerned with goods of category (v) mentioned hereinabove, namely, goods "intended for being used for the packing of goods for sale". Question that arises for our consideration is as to whether fumigation covers, tarpaulins, nylon ropes and patramats can be said to be the goods which are "intended for being used for the packing of goods for sale".

7. In order to answer this question, it is necessary to refer to the goods of the applicant and specific uses the said goods are being put by the applicant. It is the case of the applicant that fumigation covers are used for fumigating standard stacks of foodgrains to completely control and to kill the infestation. According to the applicant they are used as a curative measure to prevent deterioration with a view to preserving foodgrains. As regards tarpaulin and, nylon ropes, it is the case of the applicant that they are used to cover the foodgrains stored in open and to protect them foodgrains and other weather conditions. As regards patramats, it is the case of the applicant that they are being used to keep the same on the ground and to store the foodgrains on such patramats. The idea is to see that the foodgrains which are stored do not touch the ground and remain free from moisture, water, etc.

8. Based on the above admitted use of the abovesaid goods, we are called upon to decide as to whether they can be said to be goods "intended for being used for packing of goods for sale".

9. The learned advocate for the applicant submits that the Tribunal was not justified in placing restricted meaning on the words "packing material' and that the Tribunal could have construed the said words widely so as to include goods which are being used for the purpose of storing and preserving the foodgrains. In his submission, the four goods referred to hereinabove can he said to be packing material as referred to in section 8(3)(c) of the Central Act. The foodgrains, after being purchased, are stored by the applicant for the purpose of sale. It is the case of the applicant that it wants to sell the goods in the same condition. Since it is storing the goods and thereafter selling the same, it is necessary for the applicant to preserve them and to protect them. The material or goods which are required for the purpose of storing them or preserving them should be regarded as packing material, submits the learned counsel for the applicant.

10. In order to make good this submission, Mr. Pathak refers to the decision of the Supreme Court in the case of Ganesh Flour Mills Co. Ltd. reported in [1973] 31 STC 354. In the case before the Supreme Court the respondent was a registered dealer dealing mainly in vegetable products. The respondent wanted amendment of registration certificate so as to include therein the tin plates or tin sheets under sub-section (3) of section 8 of the Central Sales Tax Act on the plea that those goods were used by the respondent for packing its vegetable products for sale. The said application for amendment of registration certificate was dismissed by the Sales Tax Officer and revision to the Commissioner of Sales Tax also failed. The lower authorities were of the opinion that the tin plates and/or tin sheets were not containers as they had to undergo manufacturing process before they could be used as containers. The lower authorities also held that they do not fall in the category of packing material because according to them the world "packing" was invariably used for holding sold contents. Matter was carried further by way of petition under articles 226 and 227 of the Constitution of India before the High Court. The High Court took the view that the words used in section 8(3)(c) of the Act were wide enough to cover tin sheets and/or tin plates. The High Court was of the opinion that if the intention of the dealer was to acquire them in order that the dealer was to acquire them in order that they might be used for packing of goods for sale even after process of adopting them for such use they would remain packing material "intended for being used for the packing of goods for sale". By dismissing the appeal of the State the Supreme Court held that the materials referred to in clause (c) of sub-section (3) of section 8 according to its plain language should be such as are intended for being used for the packing of goods for sale. Once the intention of using the material for packing of goods for sale is proved the requirements of clause could be satisfied. The argument that packing materials are necessary only for soiled articles was negatived by the Supreme Court by reference to the observations of Encyclopedia Britannica and the observations made in that behalf are pressed into service by the learned advocate for the applicant before us, that when the goods are produced or manufactured at one place, wrapping or container is necessary during storage, transport and sale. The court further observed that :

"The functions of a package are : (1) to contain in a convenient-sized unit or amount of a product; (2) to protect it in transit; (iii) to aid its safe delivery to the consumer; and (4) in some cases to display the product and promote its sale or to display the product and promote its sale or to act as a dispenser of it."

Based on the above observations, Mr. Pathak submits that the four kinds of goods referred to hereinabove are necessary during storage of foodgrains and therefore, they would fall within the description of goods "intended for being used for packing of goods for sale".

11. We are of the opinion that this submission of Mr. Pathak is not well-founded the observations of the Supreme Court in the aforesaid case are required to be understood in the context in which they are made. Question which is required to be asked is as to which goods are required to be stored or transported, and the answer is "manufactured goods". In the case before us the goods are purchased by the applicant and thereafter they are stored for selling them. While they are being stored they are required to be protected and preserved. For the purpose of such protection and preservation the applicant is covering them with tarpaulins. They are placed on patramates so as to avoid adverse effects of water and moisture. The various admitted uses of four kinds of goods leave no room for doubt that the said goods are, in fact, being used for the purpose of protecting and preserving, the foodgrains and by way of precautionary measures to prevent deterioration or decay of foodgrains. In fact, the said goods are not being used for the packing of goods "intended for sale". The Legislature has described the goods as goods "intended for being used for packing of goods for sale". The goods must be, therefore, the goods which are used for packing of goods for sale. The Legislature does not refer to packing simpliciter, but it refers to packing of goods for sale. Material which is used must be one which is used as packing of goods for sale. Therefore, any and every material which is used simply for the purpose of covering or protecting or preserving the goods and not as something that is attached to the goods for sale by way of packing cannot, in our opinion, fall within clause (c) of sub-section (3) of section 8 of the said Act. We are, therefore, of the opinion that the goods in question can at the best be said to be the goods which facilitate preservation or protection of foodgrains, and thereby, facilitate storing of foodgrains which will be, ultimately, sold by the applicant. Something that facilitates storage of goods for sale or something that facilitates sale cannot be said to be necessarily goods used for the packing of goods for sale.

12. In the case of Indian Copper Corporation Ltd v. Commissioner of Commercial Taxes reported in [1965] 16 STC 259, the Supreme Court was called upon to decide as to whether locomotives and motor vehicles, accessories and spare parts of motor vehicles and locomotives, household, laboratory, hospital and general furnishings and fittings, medical supplies, stationery, tyres and tubes for motor vehicles, and cane baskets should be specified under section 8(3)(b) of the Central Sales Tax Act in the certificate of registration of the assessee. While dealing with "stationery" the court made the following observations :

"'Stationery' also is not intended for use in the manufacture or processing of goods for sale or for mining operations. Use of stationery, undoubtedly, facilitates the carrying an of a business of manufacturing goods or of processing goods or even mining operations, but the expression 'Intended to be used' cannot he equated with 'likely to facilitate' the conduct of the business of manufacturing or of processing goods or of mining".

13. From the above observations, it becomes clear that something that, facilitates the carrying on of business of manufacturing goods or of processing goods cannot he said to fall within the expression "intended to be used". The court pointed out clear distinctive between the expression "intended to be used" and "likely to facilitate". We are, therefore, of the opinion that the goods which are being used by the applicant for the purpose of covering the foodgrains, protecting them, preserving and storing them, the most facilitate of goods or to stretch a little further at the most remotely facilitate the sale of goods by helping in preservation thereof. These goods cannot be said to be the goods for "packing goods for sale". In fact, the goods are not being packed in any of the four categories of the goods referred to hereinabove. It is required to be noticed that it is not packing simpliciter, but packing of goods for sale. The packing must be, therefore, referable to the sale of goods. The goods must be such as are used as packing for sale. It may be noted that the Legislature has adviaedly used the words "intended to be used for packing of goods for sale" and not the words "intended for being used for packing of goods". Use of the words "for sale" restricts the meaning of packing to that pack sold. Therefore, any and everything that facilitates storing or preservation of goods cannot fall within the expression "intended for being used for the packing of goods for sale".

14. We are, therefore, of the opinion that the Tribunal was right in holding that Fumigants covers, tarpaulins, nylon ropes, patramats were being used by the applicant merely for the purpose of preservation of foodgrains in storage. They were merely material for protection or storage of foodgrains, but they were not the material in which the goods were packed for sale. The Tribunal was, therefore, right in not granting application for amendment of registration certificate by inclusion of said four items in the certificate of registration.

15. We, therefore, answer the question referred to us in the affirmative, i.e., against the applicant and in favour of the State. There shall be no order as to costs. Reference answered in the affirmative.