JUDGMENT 1. 1. This revision is directed against the order of the Rajasthan Tax Board, Ajmer dated 18.12.98 which has been pleased to set aside the order of the Deputy Commissioner (Appeals) Jaipur, who had been pleased to impose sales tax on the packing material of the goods which were sold after recording a finding that there was implied sale of the packing material (gunny bags) in which the cement had been packed which transaction of sale took place between the respondent-M/s. Manglam Cement Ltd. Kota and the dealers as also the retailers. The Deputy Commissioner (Appeals) however, was pleased to set aside the imposition of penalty for not paying the sales tax on the packing material as no dis-honest intention was attributed on the part of the respondent-manufacturer, but upheld the imposition of sales tax on the packing materials. The fall out of the impugned order of the Tax,Board is that the respondent-M/s. Manglam Cement Ltd. Kota has not been held liable to pay the sales tax on the packing material which are gunny bags in which the cements were packed and sold and thus the question of imposition of penalty could not arise which had also been the view of the Deputy Commissioner (Appeals). 2. The specific question therefore that arises for determination in this revision petition is whether the sales tax could be levied on the packing material of the finished product alongwith the goods or separate sales tax could be levied on the packing material. This question has come up for consideration before the High Court and the Supreme Court time & again and the Division Bench of this High Court in the matter of M/s. Udaipur Distillery Co. Ltd. vs. Rajasthan Taxation Tribunal & Ors. (2000) 29 RTJS 83 , after a thorough consideration of Section 5 as also the proviso to the Rajasthan Sales Tax Act, 1954 were pleased to hold that the sales tax could be levied on the packing material only if a specific and separate transaction of sale in regard to the packing material could be established by the Assessing Officer. In fact the question as to whether the packing material is leviable to sales tax or not has arisen in cases too numerous to cite. At this stage also several revision petitions have come up before this Court wherein the same question is involved for consideration. In fact the question as to whether the packing material is leviable to sales tax or not has arisen in cases too numerous to cite. At this stage also several revision petitions have come up before this Court wherein the same question is involved for consideration. While these matters are pending, it is brought to the notice of this Court that the Supreme Court is seized of this question and the latest pronouncement of the Apex Court has discussed this question in a case bearing Special Leave Petition No. 6889/2000 (Assistant Commissioner Taxes Officer, Raj. vs. Hindustan Granites) decided on 23rd October, 2002 a copy of which was produced before this Court through the Internet Services. A perusal of this judgment indicates that the question as to whether packing material is leviable for sales tax or not was a subject matter of consideration in this petition and the proviso to Section 5 of the Rajasthan Sales Tax Act, 1954 was again considered by the Apex Court. For facility of reference the proviso to Section 5 is quoted herein as follows: "Proviso of Section 5 of the Rajasthan Sales Tax Act, 1954. Provided also that when any goods are sold, packed in any material, the tax shall be leviable on the sale of such packing material, whether charged separately or not, at the same rate as is applicable to the sale of the goods themselves, and if the goods are exempted from tax under section 4 or have already been subjected to tax under the Act, then at the rate notified for such packing material from time to time." The learned judges while considering this question have clearly laid down that: "Section 5 deals with rate of tax payable by a dealer. A plain reading of the fifth proviso shows that it is in two parts. The first part applies when goods are sold, packed in any material; in such a case, the tax would be leviable on the sale of such packing material, whether charged separately or not at the same rate as is applicable to the sale of the goods themselves." But the learned judges further goes on to add that for the purposes of this proviso, there must be sale of packing material. Whether there is such a sale or not is a question of fact. Whether there is such a sale or not is a question of fact. The second part is in effect an explanation to the first part and says that if the goods are exempted from such tax under Section 4 or have already been subject to tax under this Act, tax would be levied at the rate notified for such packing material from time to time. Admittedly, no notification is placed on record. The contention that the first part and not the second part will apply as the Scheme postulates exemption of dealers and not the goods, even if accepted, will not advance the case of the Revenue because as a fact it was found that there was no sale of packing material. As observed above, this proviso is relevant for the purposes of determining the rate of tax payable by a dealer. It is neither a charging section nor can it be read into clause(s) of Section (2) - the definition of "taxable turnover"' - so as to enlarge the meaning of "taxable turnover". If this be so, the first part of the fifth proviso is of no assistance to the Revenue." 3. In view of the aforesaid observations of the Supreme Court which has a material bearing on the question involved herein, the nature of transaction of the sale of cement of the respondent-Mis Manglam Cement Ltd. has been thoroughly examined. Neither the Assessing Officer, Commercial Taxes nor the Deputy Commissioner (Appeals) could establish that there was any specific transaction of sale which took place between respondent vs Manglam Cement Ltd. with the dealer or the retailer in regard to the gunny bags in which the cements were packed. In fact the respondents are manufacturing only cements and it is an admitted position that they are not manufacturing the gunny bags, but they are purchasing gunny bags from somewhere else and thereafter the cements are packed in the bags which are sold out to the dealers and the retailers. If for the sake of argument it were to be accepted that some amount for the packing material is included in the price of the main product itself so as to charge separate sales tax on these packing material, it would be extremely far fetched and speculative in. absence of any specific contract or any other documentary evidence to hold that it is fit to be taxed separately. absence of any specific contract or any other documentary evidence to hold that it is fit to be taxed separately. The Rajasthan Tax Board therefore has rightly observed that the opinion of the Assessing Authority to the effect that the manufacturer must have realised the sales tax separately for the packing material from the dealer and the retailer is purely imaginary. 4. However, the counsel for the petitioner has tried his level best to impress upon this Court that a separate transaction of sale in regard to the packing material (gunny bags) has infact taken place between the respondent- manufacturer and the dealers as also the retailers, but he is clearly missing that he has tried to go even beyond the case of the Assessing Officer and the Deputy Commissioner (Appeals) who themselves could not categorically lay down that a specific transaction of sale in regard to packing material has taken place between the respondent manufacturer and the dealers/retailers because the Deputy Commissioner (Appeals) himself has relied upon 'implied sale' of packing material. Even they have not held that there was any document or any specific transaction of sale which could be treated as implied sale of the packing material with the main product. However, he has heavily relied upon (2) Premier Breweries vs. State of Kerala (108 STC, 598) as also the notification dated 7.3.94 in order to impress upon this Court that the packing material is fit to be taxed separately alongwith the goods. But, he is advancing this argument dearly ignoring the judgment of the Apex Court delivered in the case of Commercial Taxes Officer, Raj. vs. M/s Hindustan Granites (supra) referred to hereinbefore which has dearly laid down that a] thou h the packing material would not be entitled for sales tax exemption, yet it will have to be established that all transaction of sale in regard to the packing material has specifically taken place between the seller and the buyer and hence no sales tax could be levied on the basis of implied sale. In fact the case of Commercial Taxes Officer vs. M/s Hindustan Granites (supra) on which the counsel for the respondent has relied itself has laid down that the packing material was leviable to tax because the transaction of sale in regard to the cartons in which the liquor bottles were packed was a subject matter of separate transaction of sale and it is for this reason that separate tax was levied on this part of the material. He is further dearly missing that the Apex Court itself has laid down in no uncertain terms that whether the packing material is fit to be taxed or not is a question of fact and for this purpose I have entered into a meticulous scrutiny of the facts to determine whether transaction of sale in regard to the packing material of the cements between the respondent-manufacturer and the dealers/retailers have taken place or not and it could not be inferred at all that there was a separate transaction of sale in regard to the gunny bags in which the cements were packed. To illustrate and highlight the controversy there may be number of examples where the same kind of product and the same quantity may have different price range on account of their fancy packing and price of the product increases on account of the fancy packing, then reasonable inference by the Assessing Officer could be drawn that there must have been separate charge on account of fancy packing, but that is not the position in the instant case as it could not be established that the packing of cements in the bags were more fancy or attractive than the cements of other manufacturers so as to hold that there must have been implied sale of the packing material. In that view of the matter I do not feel impressed with the arguments advanced by the counsel for the petitioner so as to hold that the packing material was fit to be taxed separately. 5. It may further be added that the cements which are being produced by the respondent have itself been granted exemption from the sales tax under Sales Tax Incentive Scheme due to which the main product itself is not liable to pay any sales tax. 5. It may further be added that the cements which are being produced by the respondent have itself been granted exemption from the sales tax under Sales Tax Incentive Scheme due to which the main product itself is not liable to pay any sales tax. Inspite of this, the Assessing Officer could infer that although the main product was granted exemption from payment of sales tax, yet the packing material could be subjected to sales tax on the assumption of implied sale of the packing material. The inference drawn by the Deputy Commissioner (Appeals) therefore regarding the implied sale of the packing material in my opinion is clearly a misnomer which is not fit to be sustained. The impugned order passed by the Rajasthan Tax Board which has been pleased to set aside the order of the Assessing Officer and the Deputy Commissioner (Appeals) therefore, does not call for interference. Hence, this revision stands dismissed.Petition dismissed. *******