ORDER : P. Sam Koshy, J. Heard Mr. Karthik Ramana Puttamreddy, learned counsel for the petitioner in Tax Revision Case Nos.29, 40, 42, 43, 46, 68 & 110 of 2009 and for the respondent in Tax Revision Case No.229 of 2008; and Mr. Swaroop Oorilla, learned Standing Counsel for Commercial Tax appearing on behalf of the petitioner - State in Tax Revision Case No.229 of 2008 and for the respondent in Tax Revision Case Nos.29, 40, 42, 43, 46, 68 & 110 of 2009. 2. These are eight Tax Revision Cases filed under Section 22 (1) read with Rule 10 of the Andhra Pradesh Goods and Service Tax Rules (hereinafter referred to as ‘APGST Rules’) under the Andhra Pradesh Goods and Service Tax Act, 1957 (hereinafter referred to as ‘APGST Act’) challenging the orders passed by the Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad (hereinafter referred to as the ‘STAT’). The details of each of the case; like the assessment year, whether the Revision is filed by the State or the petitioner / assessee, and the Tax Appeal number along with dates in each of the cases are reproduced hereunder: Sl. No. TREVC. No. ASSESSMENT YEAR TREVCFILED BY THE ASSESSEE OR STATE IMPUGNED ORDER UNDER CHALLENGE 1. 229 of 2008 1992- 93 State T.A.No.1033 of 2004 Decided on 23.06.2008 2. 29 of 2009 1993- 94 Assessee ( M/s. Priyadarshini Cement Ltd) T.A.No.1205 of 2001 Decided on 29.08.2009 3. 40 of 2009 1993- 94 Assessee ( M/s. Raasi Cement Ltd) T.A.No.8 of 2002 Decided on 23.10.2008 4. 42 of 2009 1993- 94 Assessee ( M/s. Raasi Cement Ltd) T.A.No.10 of 2002 Decided on 23.10.2008 5. 43 of 2009 1991- 92 Assessee ( M/s. Raasi Cement Ltd) T.A.No.1332 of 2001 Decided on 05.09.2008 6. 46 of 2009 1991- 92 Assessee ( M/s. Raasi Cement Ltd) T.A.No.7 of 2002 Decided on 23.10.2008 7. 68 of 2009 1992- 93 Assessee ( M/s. Raasi Cement Ltd) T.A.No.9 of 2002 Decided on 23.10.2008 8. 110 of 2009 1992- 93 Assessee ( M/s. Raasi Cement Ltd) T.A.No.1333 of 2001 Decided on 05.09.2008 3. In all these cases since the point of contention is same, they have been taken up and heard together and are decided by this Common Order. 4. 110 of 2009 1992- 93 Assessee ( M/s. Raasi Cement Ltd) T.A.No.1333 of 2001 Decided on 05.09.2008 3. In all these cases since the point of contention is same, they have been taken up and heard together and are decided by this Common Order. 4. The question of law which was primarily raised by the petitioner / assessee as also by the Revenue in their respective cases that they have filed is “whether the HDPE bags used for packing cement should be taxed separately at a lower rate or together with cement at a higher rate under Section 6C of the APGST Act?” 5. In addition, there appears to be certain additional questions also raised in these Tax Revision Cases, which are:- a) Whether the diesel issued to the transporters on returnable basis and which was not returned constitutes taxable sale? b) Whether tax could be levied on the undocumented fly ash used by the assessee in the manufacturing process? c) Whether tax on freight relating to purchase of iron ore could be levied? 6. For convenience, we first intend to take up the first question of law which is running through in all these Tax Revision Cases including the Tax Revision Case which has been filed by the State i.e. “whether the HDPE bags used for packing cement should be taxed separately at a lower rate or together with cement at a higher rate under Section 6(c) of the APGST Act?” 7. In the Tax Revision Cases reflected at Sl.Nos.2 to 8 in the table reproduced above, the STAT has held that HDPE bags used in packing of cement being an integral part of the sale, it has to be taxed along with cement at a higher rate. Just contrary to this is the finding of STAT in the Tax Revision Case filed by the State reflected at Sl.No.1 in the table reproduced above in which the STAT has taken an altogether opposite stand that the HDPE bags and cement are two distinct entities and therefore they have to be taxed separately and in the process held that the HDPE bags have to be taxed at a lesser rate and cement has to be taxed at a higher rate. 8. In the Tax Revision Cases preferred by the assessee, we find that the Commercial Tax Officer initially had granted exemption on the packing material turnover. 8. In the Tax Revision Cases preferred by the assessee, we find that the Commercial Tax Officer initially had granted exemption on the packing material turnover. However, the Deputy Commissioner subsequently initiated revisional proceedings and revised the order of the Commercial Tax Officer holding that the HDPE bags used for packing cements would not be entitled for exemption and that it has to be taxed at the cement rate under Section 6C of the APGST Act. Aggrieved by the said order, the respective assessee’s preferred Tax Revision Cases before the STAT where the impugned orders were passed and which are under challenge before this Court. 9. In respect of the Tax Revision Case preferred by the Revenue, the Commercial Tax Officer, for the assessment year 1992-93 ordered for levying tax on HDPE bags along with cement at the rate fixed for cements. However, on an appeal preferred by the assessee, the Appellate Deputy Commissioner reversed the order of the Commercial Tax Officer vide order dated 25.04.1999 holding that the HDPE bags and cement were to be taxed separately. The order of the Appellate Deputy Commissioner was subjected to challenge before the Additional Deputy Commissioner and the Additional Deputy Commissioner vide order dated 18.10.2002 affirmed the order passed by the Commercial Tax Officer. It was this order of the Additional Deputy Commissioner which was subjected to challenge by the assessee before the STAT, which stood allowed by the STAT vide order dated 23.06.2008, and which is under challenge before this Court. 10. So far as the ground whether the HDPE bags had to be taxed independently or it has to be taxed along with its content i.e. cement, the contention on behalf of the assessee is that the STAT had previously ruled in their favor on identical facts for assessment years 1991-92 and 1992- 93, decisions that were confirmed by the High Court. The assessee argues that since the invoice formats and selling terms remain similar across these assessment periods showing separate pricing for cement and HDPE bags, the same favorable treatment should apply. Furthermore, they assert that invoices themselves constitute contracts between buyer and seller, evidencing implied separate sales of packing material. 11. The assessee argues that since the invoice formats and selling terms remain similar across these assessment periods showing separate pricing for cement and HDPE bags, the same favorable treatment should apply. Furthermore, they assert that invoices themselves constitute contracts between buyer and seller, evidencing implied separate sales of packing material. 11. The contention of the assessee all along was that the primary question of law framed in this batch of Revisions stood already settled by the Supreme Court in the case of Raj Sheel and Others vs. State of A.P. , [ 1989 3 SCC 262 ] . Likewise, in the case of M/s. Priyadarshini Cements Ltd. also it was settled by the High Court that HDPE bags was being subjected to second sale and the cost of HDPE bags was not exigable to tax and that the turnover for the purchase of HDPE bags was entitled for exemption. 12. It was also the contention of the assessee that the packing material is a commodity having its own identity and is separately classified. It was also contended that there is no change, chemical or physical in the packing either at the time of packing or at the time of using the contents and the packing is capable of being reused after the contents have been consumed. Further, the packing material is used for convenience of transport and the quality of goods as such is not dependent on packing. This test is also satisfied and cement is packed in bags only for convenience of transport and the quality of cement does not depend on HDPE bags. 13. It was further contended by the assessee that if the consideration for packing is merged with the consideration for the product would not make the sale of packing an integrated part of the sale of the product. In the present case, in fact, the packing material is separately charged. 14. It was lastly contended by the assessee that there is a separate and independent sale of the packing material and it is taxable on its own footing and not at the rate applicable to the contents. 15. The learned Standing Counsel for Commercial Tax, while opposing the Tax Revision Cases filed by the assessee, as also while addressing the Tax Revision Case preferred by the State has contended that the HDPE bags will lose its own identity the moment cement is packed in it. 15. The learned Standing Counsel for Commercial Tax, while opposing the Tax Revision Cases filed by the assessee, as also while addressing the Tax Revision Case preferred by the State has contended that the HDPE bags will lose its own identity the moment cement is packed in it. Therefore, what was sold would be the packed amount. As the assessee was not engaged in the business of re-sale of packing material, the question of assessee having any express or implied agreement to sell packing material separately to customers along with cement does not arise. Any split-up of the price in the sale invoice as price of the cement and price of packing material, the HDPE bags tantamount to artificial bifurcation of the price of cement only to avoid payment of higher rate of tax on the packing material under Section 6C of the APGST Act. 16. The learned Standing Counsel for Commercial Tax further contended that the STAT failed to analysis the facts of the case properly and mechanically allowed the case. That the HDPE Bags are primary used for packing of cement and sale of cement. Thus, without bags the same cannot be visualized and the value of the bag is less than 10% of the value of cement. The property in bags passes on to the customers along with the cement. Therefore, it is an integrated / composite sale of the cement and the bags and a consolidated consideration would be received from the customers. There was no agreement either express or implied between the assessee and the customers for separate sale of bags while selling cement. In the absence of such agreement, the transaction would be regarded composite transaction involving sale of cement and packing material like HDPE bags for a fixed consideration. 17. It was further contended that an order of STAT mechanically allowing the case of the assessee without any justification is also prejudicial to the interest of Revenue warranting revision under Section 20 of the APGST Act. In this regard, the judgment of Maruthi Fasteners Ltd. vs. State of A.P. , [30 APSTJ 212] was relied upon. 18. 17. It was further contended that an order of STAT mechanically allowing the case of the assessee without any justification is also prejudicial to the interest of Revenue warranting revision under Section 20 of the APGST Act. In this regard, the judgment of Maruthi Fasteners Ltd. vs. State of A.P. , [30 APSTJ 212] was relied upon. 18. According to the learned Standing Counsel for Commercial Tax, the judgment in 94 STC 24 relied upon by the assessee related to a Tax Revision Case under Section 22 of the APGST Act before the High Court of A.P. A Tax Revision Case to the High Court is maintainable only when the STAT decides any question of law or on fact erroneously. Such a situation does not arise at all here when the judgment of STAT in Tax Appeal No.553 of 1995, dated 13.02.1997, has a direct bearing to the facts of this case. 19. It was also the contention of the learned Standing Counsel for Commercial Tax that in the original assessment order the STAT had came to the conclusion that there was no agreement either express or implied to sell HDPE bags separately. Therefore, there was composite sale of cement and bags. However, the STAT took a different stand that there was a separate sale of HDPE bags and they would be taxable at the rate applicable under the entry instead of under Section 6C of the APGST Act. The splitting up of the value of cement and cost of packing material in the sale invoices is done for obvious reasons and this is undoubtedly permitted under the Indian Law as held by the Supreme Court in Mc. Dowells case (59 STC 227). 20. It was further contended by the learned Standing Counsel for Commercial Tax that as held by the STAT in Bharat Coca Cola’s case (46 APSTJ 49) the sale invoices themselves without any corroborative evidence establish the agreements between the parties. In such a situation, the grant of exemption by the STAT on the value of the packing materials in effectuating the orders of the Appellate Authority is rightly withdrawn by the Revisional Authority restoring the original assessment order and judgment in M/s. Priyadarshini Cements without verifying the facts in that case the facts in the present case are at variance. Each case has to be decided on its own set of facts and relative merits. 21. Each case has to be decided on its own set of facts and relative merits. 21. It was also the contention of the learned Standing Counsel for Commercial Tax that all the judgments relied upon by the assessee had been extensively dealt with in Tax Appeal No.553 of 1995, dated 13.02.1997, and those judgments were clearly distinguished to the effect that in those judgments both the STAT and the concerned High Court on facts found that there was a separate agreement for sale of packing material and the contents and the value of packing material was separately charged in the bills. In the present case, there was no agreement for sale of packing materials separately. 22. It was lastly contended by learned Standing Counsel for Commercial Tax that in the absence of any agreement between the seller and buyer, it is clear that the HDPE bags sold along with its content is a composite sale. The splitting up the value of cement and packing material in the sale invoice is not conclusive in the light of judgment of the Supreme Court in Bharat Coca Cola vs. State of A.P. , [46 APSTJ 49] , thus, the Revisional Authority has rightly proposed revision under Section 20 (2) of the APGST Act. 23. Having heard the contentions put forth on either side and on perusal of records, it would be relevant at this juncture to take note of the judicial precedents on the subject matter. 24. The predominant case in this context is that of Raj Sheel and Others (supra), wherein under similar circumstances, the Supreme Court dealing with the issue held at paragraph Nos.9 and 10 as under: “ 9. It is, therefore, perfectly plain that the issue as to whether the packing material has been sold or merely transferred without consideration depends on the contract between the parties. The fact that the packing is of insignificant value in relation to the value of the contents may imply that there was no intention to sell the packing, but where any packing material is of significant value it may imply an intention to sell the packing material. In a case where the packing material is an independent commodity and the packing material as well as the contents are sold independently, the packing material is liable to tax on its own footing. In a case where the packing material is an independent commodity and the packing material as well as the contents are sold independently, the packing material is liable to tax on its own footing. Whether a transaction for sale of packing material is an independent transaction will depend upon several factors, some of them being: “1. The packing material is a commodity having its own identity and is separately classified in the Schedule; 2. There is no change, chemical or physical, in the packing either at the time of packing or at the time of using the content; 3. The packing is capable of being reused after the contents have been consumed; 4. The packing is used for convenience of transport and the quantity of the goods as such is not dependent on packing: 5. The mere fact that the consideration for the packing is merged with the consideration for the product would not make the sale of packing an integrated part of the sale of the product.” In one case, Punjab Distilling Industries Ltd. v. CIT [ AIR 1959 SC 346 : 1959 Supp 1 SCR 683 : (1959) 35 ITR 519 ] where the bottles were sold by the assessee under a buy-back scheme, the security deposit for the return of the bottles was held to be merely in the nature of an incentive to the buyer to return the bottles. 10 .……If the transaction is one of sale of the goods only, clearly all that can be taxed in fact is the sale of the goods, and the rate to be applied must be read in the case of such goods. It may be that the price of the goods is determined upon a consideration of several components, including the value of the packing material, but nonetheless the price is the price of the goods. It is not open to anyone to say that the value of the different components which have entered into a determination of the price of the goods should be analysed and separated, in order that different rates of tax should be applied according to the character of the component (for example, packing material). What Section 6-C intends to lay down is that even upon such analysis the rate of tax to be applied to the component will be the rate applied to the goods themselves. What Section 6-C intends to lay down is that even upon such analysis the rate of tax to be applied to the component will be the rate applied to the goods themselves. And that is for the simple reason that it is the price of the goods alone which constitutes the transaction between the dealer and the purchaser. No matter what may be the component which enters into such price, the parties understand between them that the purchaser is paying the price of the goods. Section 6-C merely clarifies and explains that the components which have entered into determining the price of the goods cannot be treated separately from the goods themselves, and that no account was in fact taken of the packing material when the transaction took place, and that if such account must be taken then the same rate must be applied to the packing material as is applicable to the goods themselves. We find it difficult to accept the contention of the appellants that a rate applicable to the packing material in the Schedule should be applied to the sale of such packing material in a case under Section 6-C, when in fact there was no such sale of packing material and it is only by legal fiction, and for a limited purpose, that such sale can be contemplated……” 25. In the case of Andhra Cements Company Limited vs. Commissioner of Commercial Taxes, Hyderabad , (2015) 82 VST 431 : 2015 SCC OnLine Hyd 195 the High Court of Andhra Pradesh at Hyderabad also in somewhat similar factual backdrop following the judgment of Raj Sheel and Others (supra) held as under: “The question as to whether there is an agreement to sell packing material is a pure question of fact depending upon the circumstances found in each case." In Jamana Flour & Oil Mill (P.) Ltd. v. State of Bihar [1987] 65 STC 462 (SC), the Supreme Court had considered the ratio in the before- mentioned cited case. In State of Tamil Nadu v. E. I. D. Parry (India) Ltd. [1998] 109 STC 146 (Mad) the facts show that the respondent-dealer had sold sugar, a controlled and exempted commodity, in gunny bags and chemicals in plastic jerricans. The assessing authority brought to tax an estimated turnover of gunny bags and the turnover of plastic jerricans for the years, which are relevant. The assessing authority brought to tax an estimated turnover of gunny bags and the turnover of plastic jerricans for the years, which are relevant. He had disallowed the exemption under section 6(2) of the Central Sales tax Act, 1956 for failure to file the declarations in form E-1. On appeal, the Appellate Assistant Commissioner had allowed exemption on the gunny bags and confirmed the assessment order in other respects. The respondent appealed to the Tribunal contending for the first time that there was no sale of the polythene jerricans and that the deposits which were collected from the customers therefor were returned when the cans were returned. The Department had filed enhancement petitions in respect of the turnover of gunny bags. The Tribunal had dismissed the enhancement petitions and ordered remand of the dealer's appeals in two respects, i.e., in respect of the collection of deposit for the sale of chemicals in the polythene jerricans and refund of the same as and when the said cans were returned, besides allowing exemption therefor ; and in respect of the exemption claimed on the basis of E1 forms to consider the genuineness or otherwise of E1 forms and to grant relief therefor. The High Court of Madras while answering the question—whether the gunny bags, in which sugar—a controlled commodity—is packed and sold is assessable to sales tax, by including it in the turnover of the assessee, when especially sugar is exempt from tax had held as follows (page 153 in 109 STC): "On the face of the rationale or reasoning, as projected in the decisions referred to above, it goes without saying that in the instant case also, gunny bags, in which sugar—an exempted commodity—is packed and sold cannot at all be said to be exempt from tax on the ground that the contents of the container are exempt from tax." It is not out of place to state that in Raj Sheel case [1989] 74 STC 379 (SC) the Supreme Court upheld the validity of section 6C which was inserted by Act 11 of 1984 and had held that the said provision was only clarificatory in nature and observed that the question whether there was actual sale of containers or not is a question of fact to be determined on the facts of each case. Further, in Raasi Cement Ltd. v. Commercial Tax Officer, Miryalaguda [1997] 106 STC 169 (AP) ; (1997) 24 APSTJ 100, the constitutional validity of section 6C after its amendment as amended by Act 22 of 1995 with effect from April 1, 1995 fell for consideration. This court had upheld the constitutional validity of the provision in the said decision.” 26. Recently, this High Court again had an occasion of hearing a similar matter in the case of M/s. Cement Corporation of India Ltd. vs. State Representative before the Sales Tax Appellate Tribunal of Andhra Pradesh at Hyderabad, Tax Revision Case No.128 of 2004, decided on 11.09.2023 wherein relying upon the judgment of Raj Sheel and Others (supra) and Andhra Cements Company Limited (supra) this High Court at paragraph Nos.9 and 10 has held as under: 9. Given the said findings of the Hon’ble Supreme Court in Raj Sheel (1 supra) and also the findings given by the Division Bench of this Court in M/s.Andhra Cements Company Ltd. (11 supra), we find that the issue raised and challenged in the present Tax Revision Case is pari materia and therefore we are inclined to endorse the view taken by the Division Bench of this Court in M/s. Andhra Cements Company Ltd. (11 supra). 10. As a consequence, the impugned order passed by the Sales Tax Appellate Tribunal in T.A.No.1023 of 1996 dated 11.10.2000 becomes unsustainable, and the same deserves to be and is accordingly set aside. The Tax Revision Case stands allowed. The order passed by the Commercial Tax Officer, dated 19.03.1996 for the Assessment Year 1993-94 stands affirmed. No costs.” 27. Further, what is also reflected is that the STAT which has passed the impugned orders itself has in the past held that circumstances beyond doubt go to prove that there was an implied contract of sale in respect of the disputed HDPE bags, and the tests laid down by the Supreme Court in Raj Sheel and Others (supra) were applied and satisfied. On a careful consideration of the relevant aspects, having due regard to the totality of the facts and circumstances of the case, the STAT had held that it cannot persuade itself to accept the contention of the State for to endorse the views expressed by the lower authorities which were found by STAT to be erroneous in the above cited discussions. On the other hand, the STAT was satisfied that the orders under appeal, rendered by the lower authorities are erroneous, invalid and unsustainable, as the disputed turnover relates to second sales of HDPE bags. 28. There is also no dispute that the assessee has purchased the HDPE bags from locally registered dealers who suffered tax as is evident from the set off given to the assessee in the assessment orders. When the assessees’ are selling the same along with the cement during relevant years of assessment, the said HDPE bags are only second sales and as such the turnover pertaining to the cost of HDPE bags is not exigible to tax. On the other hand, it is eligible for exemption. 29. From all the facts and circumstances of the case, we are of the considered opinion that the findings given by the STAT insofar as the Tax Revision Case reflected at Sl.Nos.2 to 8 of the table reproduced in paragraph No.2 of this order is not sustainable and the primary question of law raised in these batch of cases so far as whether the HDPE bags used for packing cement should be tax separately at a lower rate or together with cement at a higher rate is answered in favour of the assessee and against the Revenue holding that it has to be taxed separately. The Tax Revision Case Nos.29, 40, 42, 43, 46, 68 & 100 of 2009 accordingly stand partly allowed. Likewise, the Tax Revision Case No.229 of 2008 which is filed by the State is one which is in accordance with the judicial precedents on the subject matter. For the same reason, the Tax Revision Case No.229 of 2008 being devoid of merit, deserves to be and is accordingly dismissed affirming the findings given by the STAT. 30. However, so far as the challenge by the assessee to the other questions like the diesel issued to the transporters on returnable basis which was not returned, levy of tax on undocumented fly ash and levy of tax on freight relating to purchase of iron ore, this Court is of the considered opinion that since the assessee have failed to substantiate their contention, the questions so raised are decided against the assessee and in favour of the Revenue warranting no interference to the findings given by the STAT on these issues. 31. 31. As a sequel, miscellaneous petitions pending if any, shall stand closed. However, there shall be no order as to costs.