JUDGMENT I. MAHANTY, J. : The petitioner-M/s. Tripti Drinks Pvt. Ltd. is a manufacturer and sale of Aerated Water in glass bottle containers under various trade names, i.e., Pepsi, Mirinda etc.. The petitioner-company raises bills on its distributors and levies the following charges: (i) "Price" for the Aerated Water (ii) "Security" deposit for bottles and crates (iii) A non-refundable amount as "Rent" per bottle The “rent” that is charged by the petitioner and collected from the dealers are appropriated by the petitioner but in the sales returns filed by the petitioner the amount received by it as ‘rent’ has not been disclosed. 2. The controversy in the present batch of writ petitions centres around the question as to whether the amount collected by the petitioner and termed by it as ‘rent’ should form a part of the sales turnover for the purpose of levy of Orissa Sales Tax thereon. Further question that arises is, as to whether the ‘rent’ received by the petitioner is to be accepted as value for the transfer of rights to use the bottles by the petitioner-company to its dealers. 3. In these batch of writ applications since the aforesaid common questions of law arise, they have been taken up together for hearing. For the purpose of clarity, the number of the case and the assessment year to which it relates are indicated herein below : Case No. (Tripti Drinks) Assessment years O.J.C. No.589 of 1997 1984-85, 1985-86, 1986-87, 1987- 88, 1988-89, 1989-90 and 1990-91 A. Misc. Case No.108 1996-97 of 2000 B. Misc. Case No.1081 1997-98 of 2000 C. Misc. Case No.161-89 1998-99 of 2001 D. Misc. Case No.772 1999-2000 of 2002 E. Misc. Case No.8098 2000-01 of 2002 F. Misc. Case Nos.1726 2001-02 & 2488 of 2003 O.J.C. No.1089 of 1997 1991-92, 1992-93 & 1993-94 O.J.C. No.12807 of 1998 1994-95 Case No. (Sriram Drinks) Assessment years O.J.C. No.10091 of 1991 1995-96 4. This batch of writ applications have a long chequered litigation history. Case No.772 1999-2000 of 2002 E. Misc. Case No.8098 2000-01 of 2002 F. Misc. Case Nos.1726 2001-02 & 2488 of 2003 O.J.C. No.1089 of 1997 1991-92, 1992-93 & 1993-94 O.J.C. No.12807 of 1998 1994-95 Case No. (Sriram Drinks) Assessment years O.J.C. No.10091 of 1991 1995-96 4. This batch of writ applications have a long chequered litigation history. The petitioner had filed O.J.C. No.1694 of 1986, 329 of 1987, 1996 of 1998, 3772 of 1988, 314 of 1990, 303 of 1991 and 2061 of 1992 before this Court and the said batch of cases came to be disposed of vide order dated 9.7.1992, whereby this Court was pleased to quash the orders of assessment passed against the petitioner-assesse and direct remand of the matter to Assessing Officer to make the assessment afresh. The records reveal that pursuant to direction of this Court, re-assessment orders were passed for the period 1984-85 to 1990-91 vide the order passed on 5.9.1994 accepting the stand of the petitioner. But thereafter, the Asst. Commissioner of Commercial Taxes initi¬ated proceeding under Section 23(4)(a) of the Orissa Sales Tax, 1957 read with Rule-80 of the Sales Tax Rules in the suo motu revision of the re-assessment orders on the following grounds : (i) The order of reassessment passed by the Sales Tax Officer, Cuttack-II Circle on 5.9.1994 for the years 1984-85 to 1991 is erroneous and so far as it is prejudicial to the interest of justice. (ii) The learned Assessing officer has passed a single reassess¬ment order in respect of assessment under Section 12(4) of the Orissa Sales Tax Act, 1947 for the year 1984-85 to 1990-91 which is highly irregular. (iii) The reassessment order has not been finalized in the light of the Judgment and orders of the High Court of Orissa in O.J.C. Nos. 575, 577 and 578 of 1988. Upon issue of notice as noted hereinabove, the Asst. Commis¬sioner vide his order dated 11.10.1995 passed a suo motu revisional order revising the reassessment order passed for the period 1984-85 to 1990-91 by the Sales Tax Officer and as a consequence thereof, raising additional demand of tax against the petitioner. 5. 575, 577 and 578 of 1988. Upon issue of notice as noted hereinabove, the Asst. Commis¬sioner vide his order dated 11.10.1995 passed a suo motu revisional order revising the reassessment order passed for the period 1984-85 to 1990-91 by the Sales Tax Officer and as a consequence thereof, raising additional demand of tax against the petitioner. 5. The petitioner being aggrieved by the suo motu revi¬sional order dated 11.10.1995 challenged the same before this Court in O.J.C. No.3034 of 1996 and this Court by its order dated 19.7.1996 allowed the writ application by quashing the suo motu revisional order passed by the Asst.Commissioner and remanded the matter to him for passing orders afresh. Upon remand, the Asst. Commissioner, heard the suo motu revision once again and passed the order afresh on 18.10.1996 for the period 1984-85 to 1990-91 holding that the ‘rent’ charged by the petitioner-company from the distributor on the bottle con¬tainers is clearly and undisputedly for the right to use the bottle-containers for the temporary period which is construed as sale under Section 2(g)(iv) of the Orissa Sales Tax Act, 1947 and liable to pay tax thereunder. In that respect, the Asst.Commis¬sioner observed as follows : “For the period during which the distributor/retailer re¬mains as the sole controller/custodian and possessor of the bottle/containers enjoying full liberty to retain and use the bottle/containers to the exclusion of all other including the dealer-company the later looses its authority to exercise con¬trol, custody and possession of the bottle/container. Therefore, the ‘rent’ charged by the dealer-company from distributors/re¬tailer on the bottle/containers is clearly and undisputedly for the transfer of right to use the bottle/containers for a temporary period which constitutes sale within the meaning of Section-2(g)(iv) of the Orissa Sales Tax Act.” 6. The said suo motu revision order is the subject matter of challenge in O.J.C. No.589 of 1997 and the orders of assess¬ment passed for the subsequent assessment years basing on such a stand of the revenue are the subject matter of the connected writ petitions. 7. Mr. Bibek Mohanty, learned counsel appearing for the petitioner, inter alia, contended that the impugned order is not in consonance with the principles laid down by this Court in the case of Kandoi Transport and others v. Sales Tax Officer, Assess¬ment Unit, Barbil and others, (O.J.C. Nos.576, 577 and 578 of 1988, disposed of on 4.12.1991). In this respect, Mr. Mr. Bibek Mohanty, learned counsel appearing for the petitioner, inter alia, contended that the impugned order is not in consonance with the principles laid down by this Court in the case of Kandoi Transport and others v. Sales Tax Officer, Assess¬ment Unit, Barbil and others, (O.J.C. Nos.576, 577 and 578 of 1988, disposed of on 4.12.1991). In this respect, Mr. Mohanty submitted that this Court in the aforesaid judgment has stated that “when control, custody and possession of the vehicle is transferred, it is only in such a case that can be said to be a transfer of right to use.” He further submitted that in the present case the bottle/container in which Aerated Water is transferred by the dealer company to the distributors/retailers against the price separately charged, i.e., a price for Aerated Water and ‘rent’ for use of the containers for temporary period, transfer of the contents as well as the containers by the dealer company to its distributors/retailers occurs, but the custody, control and possession of the containers remains with the dis¬tributors and retailers till Aerated water is consumed using the bottle/container and the bottle/container is returned back to the dealer-company. 8. Mr. R. P. Kar, learned Addl.Standing Counsel on behalf of the revenue submitted that Entry-54 of List II of Seventh Schedule of the Constitution of India authorizes a State to impose tax on the sale or purchase of goods and by the enactment of the 46th Constitutional Amendment, 1982 the expression “tax on sale or purchase of goods” has been given an extended meaning, by inserting Clause-29-A in Article 366 of the Constitution of India thereby, bringing within its sweep the legislative competency to levy tax on “transfer of right to use” which to the extent rele¬vant to the present case reads as under: “29-A- Tax on the sale or purchase of goods includes xx xx (d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, de¬ferred payment or other valuable consideration. xx xx xx Subsequent to the 46th Constitutional Amendment, 1982 the Orissa Sales Tax Act, 1947 was amended w.e.f. 7.4.1984 and the term ‘dealer’ under Section 2(c) (viii) came to include a person who transfers the right to use in goods. After the amendment, Section 2(c) (viii) reads as follow: “(viii). xx xx xx Subsequent to the 46th Constitutional Amendment, 1982 the Orissa Sales Tax Act, 1947 was amended w.e.f. 7.4.1984 and the term ‘dealer’ under Section 2(c) (viii) came to include a person who transfers the right to use in goods. After the amendment, Section 2(c) (viii) reads as follow: “(viii). A person who transfers right to use in goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration.” Apart from the above amendment, Section 2(g) of the Orissa Sales Tax Act was also amended w.e.f. 7.4.1984 and the term ‘sale’ stipulated under Section 2 (g)(iv) also came to include transfer of right to use any goods and the post amendment Sec¬tion-2(g)(iv) reads as follows : “Transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred pay¬ment or other valuable consideration.” 9. Mr. Kar while placing reliance on the aforesaid amend¬ments to the Constitution of India, as well as, the Orissa Sales Tax Act submitted that this amendment of the Constitution had been challenged before the Hon’ble Supreme Court and the same has been held to be valid and constitutional and hence, the concept of “deemed sale” enumerated in sub-Clause (d) of Clause-29 (A) of Article-366 and the corresponding amendments in Section-2(c)(viii) and Section-2(g)(iv) of the Orissa Sales Tax Act have also been held as valid legislation. In the light of the background of the aforestated facts, Mr. Kar, learned counsel for the revenue submitted that, in the present case, Aerated Water being sold by the petitioner being packed in bottles and sold to its ultimate purchasers through its dealers/retailers, in addi¬tion to the price of Aerated Water and security deposit for the bottles, a non-refundable amount per bottle termed as ‘tent’ is also collected. Mr. Kar further submitted that Aerated Water cannot be sold as such without packing and therefore, it requires packing in some form and in the present case, the petitioner uses glass bottles, without which Aerated Water cannot be sold. There¬fore, the property of goods i.e. Aerated Water cannot pass to the customers without the bottles and that is why, the value received for transfer of the right to use the glass bottles, itself con¬stitute an integral part of the sale of the commodity in ques¬tion. There¬fore, the property of goods i.e. Aerated Water cannot pass to the customers without the bottles and that is why, the value received for transfer of the right to use the glass bottles, itself con¬stitute an integral part of the sale of the commodity in ques¬tion. Mr.Kar, further submitted that the term “goods” has been defined in Section 2(d) of the Orissa Sales Tax Act to mean all kinds of moveable property other than actionable claims, shares, security and stocks and includes the goods used in words “Wheth¬er as goods or in some other form”. Therefore, he submitted that goods do have what is called “composite personality” which in the present case means bottles together with its contents i.e. Aerat¬ed Water, constitute the goods in the present case for the pur¬pose of the levy of tax under the Orissa Sales Tax Act. 10. Mr. Kar, learned counsel for the Revenue further sub¬mitted that the petitioner has admitted that it has an implied understanding/agreement between the petitioner and its purchas¬ers/dealers for transfer of goods on payment of “rent” apart from other charges. Therefore, since there is an admission on the part of the petitioner that it has transferred “the right for use of the goods” to its dealers/retailers for a price which also in¬cludes “rent”, the ultimate return of empty bottles to the peti¬tioner, after sale/consumption of Aerated Water cannot make any difference whatsoever. He further submitted that in view of the above, the contention of the petitioner that the bottles remain as the ‘property of the dealer’ is not a relevant fact for con¬sideration since, the transfer of right to use the bottle and to consume its contents on payment of consideration is inclusive of “rent” has been admitted by the petitioner. According to Mr. Kar, the orders impugned herein are supported by the judgment rendered by this Court in the case of Kandoi Transport (supra) and while no conflict with the same exists. Mr. Kar placed reliance upon a judgment of the Hon’ble Supreme Court in the case of State of Orissa v. Asiatic Gases Ltd. (2007) 7 VST 531 (S.C.) and submitted that the ques¬tion involved in the present case is no longer res integra in view of the aforesaid judgment of the apex Court. 11. Mr. Kar placed reliance upon a judgment of the Hon’ble Supreme Court in the case of State of Orissa v. Asiatic Gases Ltd. (2007) 7 VST 531 (S.C.) and submitted that the ques¬tion involved in the present case is no longer res integra in view of the aforesaid judgment of the apex Court. 11. The basic facts of the present case not being in dis¬pute and the petitioner-company having admitted to have received “rent” (non-refundable) from its dealers towards the bottles and crates supplied to them, the question as to whether the amount collected by the petitioner and termed by it as ‘rent’ should form a part of the sales turnover for the purpose of levy of Orissa Sales Tax thereon. In the case of Asiatic Gases (supra), the assessee carried on business in manufacture and sale of medi¬cal oxygen and industrial gases by filling the same in cylinders. Clause-3 of the contract between the assessee and its customers provided that the assessee shall deliver cylinders containing medical oxygen and collect empty cylinders from the buyers after a specified period of two weeks. Clause-4 of the contract stipu¬lated that the customer/buyer shall deposit by way of “security” a certain amount which would be “refunded” on termination of the contract. Clause-5 provided that the cylinder was the property of the assessee and that it was given on loan for 14 days free from payment of any charges and that if the customer retained the cylinder beyond the period of 14 days, the customer was liable to pay 50 paise per day in respect of each cylinder for a certain number of days and thereafter Rs.2 per day. In the event of loss of the cylinder the customer was to compensate the assessee for such loss. The assessee collected certain amount from its customers “for over-retention” of Gas cylinders and the question as to whether such charges for “over retention” formed part of the “sale price” for the purpose of sales tax under the Orissa Sales Tax Act, 1947 came to be considered by the Supreme Court. The assessee collected certain amount from its customers “for over-retention” of Gas cylinders and the question as to whether such charges for “over retention” formed part of the “sale price” for the purpose of sales tax under the Orissa Sales Tax Act, 1947 came to be considered by the Supreme Court. The Hon’ble Supreme Court reversed the decision of he High Court reported in the case of Asiatic Gases v. State of Orissa and others, reported in (2001) 121 STC 405 and came to hold that medical oxygen or industrial gases could not be sold without containers and since the property in those goods could not pass to the customers without the containers, the “containers” consti¬tuted an “integral part” of the medical oxygen and industrial gas. Section 2(g)(iv) provided that “sale” shall mean any trans¬fer of property in goods and included the transfer of the right to use such goods. The tax sought to be levied was on “over retention charges” for the transfer of the right to use goods for consideration and the levy of O.S.T. on the same was proper. 12. In the present case at hand, it is clear that “Aerated Water” could not be sold without “container” which is “glass bottle”. Therefore, the property in Aerated Water could not pass to the customers without the container and further therefore, glass bottles/containers have to be held to have constituted an integral part of the sale of Aerated Water, which is subject matter of sale. Apart from this, Section 2(g)(iv) which defines the term “Sale” to mean any transfer of property in goods for total payment or for any other valuable consideration that it shall include transfer of right of use of such goods for any purpose, whether or not for specified period for cash, deferred payment or any other valuable consideration. In this respect, the Hon’ble Supreme Court has clarified that levy of tax on “transfer of right of use” of such goods for consideration. In the present case, it is clear from the records of the case that the “value/consideration” of Sale includes : (1) “price” for Aerated Water and (2) “Rent” (non-refundable). The charges of both the aforesaid amounts together constitute part of the sales turnover. In the present case, it is clear from the records of the case that the “value/consideration” of Sale includes : (1) “price” for Aerated Water and (2) “Rent” (non-refundable). The charges of both the aforesaid amounts together constitute part of the sales turnover. Whereas the “price” was collected for Aerated Water, the collection of “Rent” (non-refundable) amount per bottle is clearly a charge being levied by the petitioner for “the transfer of right to use the glass bottles”. Therefore, both, the “price” and “rent” received by the petitioner in the present case together, constitute the consideration and there¬fore, have been rightly held to form part of the sales turnover for the purpose of levy of O.S.T. 13. Learned counsel for the petitioner in his revised written notes of argument submitted on 31.8.2007 has sought to advance various grounds by which he has tried to distinguish the present case from the case dealt with by the Supreme Court in the Case of Asiatic Gases (supra) in the following manner : “(1) In the ASIATIC GASES case the business of the Assessee was conducted in the following manner. (a) The Assessee carried on business of manufacture and sale of Medical Oxygen and Industrial Gases by filling in Cylinders. The Cylinders are made of steel and hence unbreakable. They were also made in such a way that excepting air no other substance would go inside the cylinder after the oxygen or Industrial Gas is con¬sumed. (b) The contract between the Assessee and its customers/consum¬ers provided that the Assessee shall deliver the Cylinders con¬taining Medical Oxygen and collect empty Cylinders from the buyers after a specified period of two weeks. (c) The contract also stipulated that the consumer/buyer shall deposit by way of security a certain amount which would be re¬funded on termination of the contract. (d) The contract provided that the Cylinder was the property of the Assessee and that it was given on loan for fourteen days free from payment of any charges. (e) If the customer retains the Cylinder beyond the period of fourteen days, the customer is liable to pay Rs.0.50 paise per day in respect of each Cylinder for a certain number of days and thereafter Rs.2.00 per day. (f) In the event of loss of Cylinder, the customer/consumer was to compensate the Assessee for such loss in terms of the schedule mentioned in the contract. (f) In the event of loss of Cylinder, the customer/consumer was to compensate the Assessee for such loss in terms of the schedule mentioned in the contract. (g) Under the contract it was also open for the consumer to buy the Gas Cylinder or to borrow it on loan from the Assessee. (2) In the case of the petitioner: (a) There was no contract between the petitioner and the ulti¬mate consumer of the soft drinks. (b) Assuming for the same argument that there was an oral contract between the petitioner and the consumer of the soft drinks, still then the consideration from either side was for the contents of the soft drinks inside the bottle for a price. (c) The ultimate consumer did not have any other right other than consuming the soft drinks. (d) The bottles after being filed up are sent in wooden cases to the Distributor. The Distributor thereafter sends it to the Retailer who finally sells soft drinks to the consumer and collects the price and the empty bottles from the consumers. On its return journey the empty bottles and crates/cases come from the Retailer to the Distributor and from the Distributor to the petitioner’s factory. (e) The petitioner collects an amount from the distributor term¬ing it as a rent, which actually is not a rent. (f) There is no contract either oral or written in the petition¬er’s case between the petitioner and the consumer on which it was open for the consumer to buy the soft drink bottle or to borrow it on loan from the petitioner as in the case of ASIATIC GASES. (g) If some cases of soft drinks i.e. the wooden cases with filled up bottles remain with the Retailer for a certain period and are thereafter returned back without being sold, the amount (rent) which was collected is refunded to the distributor in its entirety. (h) In the Asiatic Gases case the amount was collected from the consumer and the said amount may be a transaction of the right to use between the Seller and the Buyer for a consideration. (h) In the Asiatic Gases case the amount was collected from the consumer and the said amount may be a transaction of the right to use between the Seller and the Buyer for a consideration. In the petitioner’s case the amount (rent) was collected from the Whole¬seller/Distributor who is an agent of the petitioner (conduit) to receive the sealed bottles with the soft drinks from the peti¬tioner at his godown, despatch them to the Retailers (agent of the petitioner) who finally sells it to the consumer of the soft drink. No amount (rent) other than the “sale price” of the soft drink is collected from the consumer. Therefore there is no transaction of the transfer of right to use between the petition¬er i.e. the Seller and the Consumer i.e. the Purchaser which can be subject to a deemed sale under the Act. The Wholesaler/Dis¬tributor is not the Consumer/Purchaser of the soft drink. He is basically a distribution agency of the petitioner for handling the goods (wooden cases/crates with filled up bottles) from his godown, despatching the same to the retailers and bringing back the empty bottles and crates from the retailers back to his godown. In no case the amount paid by the Wholesaler/Distributor (so called rent) is passed on by the Wholesaler/Distributor to the Consumer. Hence, the transaction between the Seller and Purchaser/Consumer in Asiatic Gases is different from the Seller/Petitioner and its Purchaser (consumer of the soft drinks).” 14. We have given our anxious consideration to the attempt made by the learned counsel for the petitioner for distinguishing the present case from the case of Asiatic Gases Ltd. (supra). We are of the clear view that the attempt made by the learned coun¬sel for the petitioner is futile and cannot succeed for the following reasons : (A) The fact whether there was a contract between the petitioner and the ultimate consumer of the soft drink has no relevance since the levy of tax was on the transaction between the peti¬tioner and its distributors/retailers and not the ultimate con¬sumer. (B) The fact that the ultimate consumer purchased the cold drink from the retailer with an objective to consume the contents and does not purchase the bottle itself is of no consequence, as well, since the consideration that the ultimate consumer pays to the Retailor, not only covers the cost to the retailer, which obviously includes amongst others, the charges raised by the petitioner both towards “Price” as well as “Rent”, to its Dis¬tributors. Therefore, the subject matter of levy not being the consideration paid by the ultimate consumer, but the considera¬tion being paid by the distributors/retailers, this attempt of distinction is of no relevance to the present case. 15. After due consideration of the attempt made by the petitioner to distinguish the facts of the present case with that of the case of Asiatic Gases Ltd. (supra), we are of the clear view that the levy that is sought to be made is on the sale of Aerated Water by the manufacturers and on charges it collects from its distributors/retailers. Therefore, the attempt made by the learned counsel for the petitioner to drag in the “ultimate consumer” is of no relevance and of no avail. It is well settled that the subject matter of tax is a “sale” for value or consider¬ation. In the case at hand, the petitioner admits to have re¬ceived non-refundable amount per bottle which it has termed as “rent” apart from the “price” for the Aerated Water. The nomen¬clature used by the assessee-petitioner in his accounts such as “rent” or any other term, would not in any manner be determina¬tive. The fact that both the aforesaid amounts i.e. the “price” as well as “rent” formed part of the “consideration” being admit¬ted, leaves no room for any doubt that sales tax was leviable on both. We make it clear that this issue is no longer res integra in view of the fact that the Supreme Court in the case of Asiatic Gases Ltd. (Supra) has categorically laid down the dicta that “where commodity cannot be sold without container, such container constitutes an integral part of the commodity in question.” The word “goods” as has been defined in Section 2(d) covers all kinds of moveable property.............. and includes the goods used in words “whether as goods or in some other form”. and includes the goods used in words “whether as goods or in some other form”. Therefore, goods do have what is called “composite personality” and in the present case the glass bottles together with its contents, i.e., the Aerated Water both constitutes the “goods” and has a “composite personality”. The Supreme Court has further laid down that in terms of Section 2(g)(iv) of the Orissa Sales Tax Act, 1947, “Sale” shall mean any transfer of property in goods for cash or deferred payment or for any other valuable consideration and that it shall include transfer of the right to use such goods for any purpose, whether or not for specified period for cash, deferred payment or any other valuable consideration. In view of the aforesaid judgment of the Supreme Court we are afraid that the contentions advanced by the petitioner have to be rejected. 16. Another aspect of this case which requires to be taken note of it that the amount “rent” collected by the petitioner was non-refundable amount computed at the rate per bottle and there¬fore, such charges have also to be included into the “sale turn¬over” for the purpose of levy of tax thereon. Unlike in the case of Asiatic Gases Ltd. (supra) where over retention charges was payable only for the period of over-retention, whereas in the present case under no circumstance was the “rent” collected by the petitioner ever refundable, and therefore, we are convinced that the amount received by the petitioner and termed by it as “rent” in its accounts has to form part of “sales” turn over” and is also subject to levy of tax thereon under the OST Act, 1947. 17. In view of the aforesaid conclusion, the suo motu revisional order passed by the Asst. Commissioner of Commercial Taxes dated 18.10.1996 and the subsequent orders of assessment in the connected writ petition are up-held as valid in law. All interim orders passed earlier stand vacated and the Revenue is given liberty to raise/enforce its pending demand of tax against the petitioners. Payment/deposits, if any, made by the petition¬ers pursuant to interim orders passed shall be adjusted against such pending demand. The writ applications are dismissed, but in the circum¬stances without costs. A. K. GANGULY, C.J. I agree. Applications dismissed.